author: Johnson, Judge.

text:
    A92A0350.
    LANKFORD v. THE STATE.
    (419 SE2d 498)
   Johnson, Judge.

George W. Lankford was convicted of failure to maintain lane, following too closely, violating the duty of a driver to stop at the scene of an accident, driving under the influence of alcohol, no proof of insurance and driving without a license on his person. Lankford appeals from his conviction and the denial of his motion for a new trial.

1. Lankford contends the trial court erred in allowing evidence that he refused to take a breath test. It is uncontroverted that the arresting officer read to Lankford his implied consent rights under OCGA § 40-5-55 before asking Lankford to submit to the breath test. Lankford argues, however, that evidence of his refusal to take the test should have been excluded because the officer did not advise him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). This argument is without merit.

“In any criminal trial, the refusal of the defendant to permit chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.” OCGA § 40-6-392 (d). “A refusal to take a blood alcohol test which was requested by a police officer is not an act coerced by the officer, and the refusal is not protected by the privilege against self-incrimination.” Patton v. State, 170 Ga. App. 807 (2) (318 SE2d 231) (1984), citing Wessels v. State, 169 Ga. App. 246 (312 SE2d 361) (1983). Lankford’s refusal to take the test is not protected by the privilege against self-incrimination. Accordingly, the court was not required to exclude evidence of Lankford’s refusal due to the officer’s failure to inform Lankford of his Miranda rights. We find no error.

2. Lankford enumerates as error the trial court’s denial of his motion to suppress evidence of his field sobriety test. The arresting officer was allowed to testify that at the scene of the traffic stop Lank-ford was not able to recite the entire alphabet or adequately perform physical dexterity tests. Lankford was not informed of his Miranda rights prior to the test. Consequently, Lankford claims, the officer’s testimony violated his right against self-incrimination as protected by the fifth amendment of the United States Constitution, by Art. I, Sec. I, Par. XVI of the Georgia Constitution and by OCGA § 24-9-20. This enumeration is without merit.

“[W]e hold that the alphabet test and the physical'dexterity tests are not inadmissible under the fifth amendment of the United States Constitution because they were not evidence of a testimonial or communicative nature.” Hughes v. State, 259 Ga. 227, 228 (2) (b) (378 SE2d 853) (1989). Consequently, the officer’s testimony regarding the field sobriety test was admissible and did not violate Lankford’s rights under the fifth amendment.

Moreover, we find that there was no violation of Lankford’s right not to incriminate himself under the fifth amendment, the Georgia Constitution, or OCGA § 24-9-20, because he was not in custody at the time the field sobriety test was administered. “A law enforcement officer coming upon the scene of suspected criminal activity will conduct a general on-the-scene investigation and may detain temporarily anyone at the scene who tries to leave before the preliminary investigation is completed. Such detentions do not trigger the requirements of Miranda v. Arizona.” (Punctuation and citations omitted.) Daugherty v. State, 182 Ga. App. 730, 731 (356 SE2d 902) (1987). Here, the evidence shows that an off-duty police officer observed Lankford commit several traffic offenses. The officer stopped Lank-ford and noticed that he appeared to be intoxicated. The officer waited with Lankford for approximately three minutes before two other officers arrived to conduct an investigation. The off-duty officer then left the scene. One of the backup officers conducted the field sobriety test before placing Lankford under arrest. “The evidence authorized the conclusion that defendant had not yet been arrested at the time of his [field sobriety test] but was being briefly detained while the officer determined the nature of the situation.” Daugherty v. State, supra. “ ‘Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.’ [Cits.]” Lipscomb v. State, 188 Ga. App. 322 (372 SE2d 853) (1988). Since Lankford was not formally arrested until after the field sobriety test, there was no violation of his right against self-incrimination. The trial court therefore did not err in denying Lankford’s motion to suppress.

3. Lankford complains that the trial court erred in failing to direct a verdict of acquittal as to the offenses of failure to maintain lane, no proof of insurance, and driving without a license on his person. Lankford argues that there was insufficient evidence to prove the essential elements of each offense. We disagree.

Lankford made a motion for a directed verdict of acquittal only as to the offense of failure to maintain lane. He made no such motion as to the offenses of no proof of insurance and driving without a license on his person, although he did challenge the sufficiency of the evidence on those two offenses in his motion for a new trial. On appeal, the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), “is the proper test [to be used] when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for a new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). One police officer testified that he stopped Lankford after seeing him swerve out of his lane three times, run into the back of another car, and leave the scene of the collision without stopping. Another officer testified that Lankford failed to produce his driver’s license and proof of insurance upon request. He also testified that neither of those items was found in Lankford’s car during a routine inventory search of the vehicle. Reviewing all the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Lankford guilty of failure to maintain lane, no proof of insurance, and driving without a license on his person. Jackson v. Virginia, supra.

4. Lankford challenges the sufficiency of the accusation charging him with violating the duty of a driver to stop at the scene of an accident. He claims that the accusation fails to set forth all elements of the offense. This argument was not properly raised in the trial court and may not be raised for the first time on appeal.

“Rule 31.1 of the Uniform Superior Court Rules does require all motions and demurrers to be made and filed at or before the time of arraignment unless the time is extended in writing by the judge. In addition, OCGA § 17-7-111 requires such motions to be made in writing. These rules, however, do not preclude an oral objection to the sufficiency of an indictment or accusation at any time during trial if it is so defective that judgment upon it would be arrested. Where the accused desires to take exception to the form of an indictment or accusation, it is essential that he should do so by a demurrer or motion to quash, made in writing and before pleading to the merits.” (Punctuation and citations omitted.) Pullen v. State, 199 Ga. App. 881 (406 SE2d 283) (1991). In the case at bar, Lankford made no written demurrer or motion to quash the accusation and he made no oral objection to its sufficiency at trial. Accordingly, Lankford waived any objection to the form or sufficiency of the accusation and he may not now raise it on appeal.

5. Lankford contends the trial court erred in admitting evidence of similar transactions. The contention lacks merit.

“Evidence of similar crimes (or transactions) is admissible where its relevance to show identity, motive,- plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime (or transaction). Second, there must be sufficient similarity or connection between the independent crime (or transaction) and the offense charged.” (Punctuation and citations omitted.) Gulley v. State, 197 Ga. App. 131, 132 (2) (397 SE2d 609) (1990). In the case at bar, the trial court admitted evidence of three similar transactions. All three of the similar crimes and the offense charged involved Lank-ford driving a motor vehicle under the influence of alcohol and causing a collision. The offense charged and two of the similar transactions occurred in the same county, while the third similar offense occurred in an adjoining county. Further, all four incidents occurred in the evening and, in all but one of the incidents, Lankford was driving the same car. We find sufficient similarity between the three similar transactions and the offense charged. The trial court did not abuse its discretion in admitting the similar transaction evidence. See Blane v. State, 195 Ga. App. 504 (1) (393 SE2d 759) (1990).

6. Lankford next enumerates as error the trial court’s refusal to give his requested jury charge on accident. “ ‘A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.’ [Cit.]” Grant v. State, 197 Ga. App. 878, 880 (2) (399 SE2d 743) (1990). A charge on accident was not authorized by the issues or evidence in this case. Accordingly, the court did not err in refusing Lankford’s requested charge.

Decided May 13, 1992

Reconsideration denied June 2, 1992

G. Alan Blackburn, for appellant.

Patrick H. Head, Solicitor, Beverly M. Collins, B. Martin First, Assistant Solicitors, for appellee.

Judgment affirmed.

Pope, J., concurs. Carley, P. J., concurs in Divisions 1, 2, 3, 4, and in the judgment.


source: Caselaw Access Project

license: Public Domain

text:
    A92A0616.
    NELSON v. THE STATE.
    (419 SE2d 502)
   Johnson, Judge.

Richard Charles Nelson appeals from his conviction of two counts of sale of cocaine and the denial of his motion for a new trial.

1. Nelson’s first two enumerations of error, that the trial court erred in denying his motion for a directed verdict of acquittal and in denying his motion for a new trial, are based on the assertion that there was insufficient evidence at trial to support the jury’s verdict. These enumerations are without merit.

The State’s primary witness was an undercover police officer who testified that on two separate occasions he purchased cocaine from Nelson. Each transaction lasted several minutes and occurred in Nelson’s place of business. The officer testified that he was certain about his identification of Nelson as the perpetrator. The State also presented evidence that the substances sold to the undercover officer by Nelson were in fact cocaine. Reviewing all the evidence in the light most favorable to the jury’s decision, we conclude that a rational trier of fact could have found Nelson guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Nelson claims that the trial court erred in denying his motion for a mistrial on the ground that his character was improperly placed into evidence by a witness’ reference to his prior criminal convictions. We disagree.

Nelson called his mother as a witness and the following exchange took place during the prosecuting attorney’s cross-examination of her: “Q. So he’s lived with you until he was twenty six years old? A. Back and forth when he wasn’t in jail.” Nelson made a motion for a mistrial, which the court denied. The court offered to give immediate curative instructions to the jury. Instead, Nelson asked the court to wait and give the curative instructions as part of its general charge to the jury after the close of all the evidence. The court complied with counsel’s request and, as part of its final charge to the jury, instructed them that the comment by Nelson’s mother should be disregarded, that it had no probative value and that the burden of proof never shifts to the defendant. Nelson’s attorney stated that he thought the court’s instructions were appropriate and he had no objections to the charge.

Decided May 15, 1992

Reconsideration denied June 2, 1992.

Abbot, Murphy & Harvey, Fred K. Harvey, Jr., for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assis tant District Attorney, for appellee.

“When a witness gives a non-responsive answer to a question impacting negatively on the defendant’s character, this does not place the defendant’s character in issue under OCGA § 24-9-20 (b).” (Punctuation and citations omitted.) Perry v. State, 191 Ga. App. 589, 590 (1) (382 SE2d 402) (1989). In the instant case, we find that Nelson’s character was not placed into issue because the witness gave a non-responsive answer to the prosecutor’s question. The State did not directly solicit the information and it does not appear that the State anticipated the response.

Nonetheless, even if the witness’ statement did place Nelson’s character in issue, the trial court did not abuse its discretion in denying the motion for a mistrial. “The decision of whether statements which impermissibly place a defendant’s character in issue are so prejudicial as to warrant a mistrial (is for) the discretion of the trial court. (Appellate courts) will look at the relevant circumstances to determine if the trial court abused its discretion in denying the motion for mistrial. Some of the factors and circumstances to be reviewed include the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” (Punctuation and citations omitted.) Freese v. State, 196 Ga. App. 761, 762-763 (1) ( 396 SE2d 922) (1990). Here, the unresponsive statement of Nelson’s own witness did not necessarily imply that he had prior criminal convictions. Moreover, the court, in accordance with Nelson’s request, gave appropriate curative instructions to the jury to disregard the statement. In light of these factors and all the evidence presented, it is unlikely that the statement affected the jury’s verdict. Accordingly, we find no error.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    A92A0275.
    McKENNY v. THE STATE.
    (419 SE2d 731)
   Pope, Judge.

Defendant Robert McKenny was found guilty of possession of cocaine with intent to distribute and possession of marijuana. The evidence presented at trial shows the police raided a house on Dan Bowles Road in the Hyde Park area of Augusta. The defendant was the only person in the house at the time of the raid and he was found kneeling on a mattress on the floor of the front room of the house. A pistol was partially concealed under the mattress and a police scanner was in the room. Officers found rock cocaine in plain view on the kitchen counter and a scale of the type used for dealing drugs and a bag of marijuana in the kitchen cabinet. A small pipe of the type used for smoking rock cocaine was found in the bathroom cabinet. No other furniture or personal belongings were found in the house.

1. Defendant argues the evidence shows that he was merely present at the scene and does not show he was in possession of the contraband. Defendant argues the evidence is therefore insufficient to sustain his conviction. Defendant testified and denied the drugs belonged to him or that he lived in the house. He said he picked up a woman he had never met before and she invited him to come to the house. According to defendant, just before the police arrived, she left to go get beer. The evidence shows, however, that the key to the front door was in defendant’s pocket at the time of his arrest and the back door was bolted and boarded shut. The officers denied seeing anyone leave the apartment just before the raid. The defendant presented the testimony of his landlord who testified defendant rented “a home” in the neighborhood. Although the exact address of defendant’s rented house was not established, the testimony was consistent with the conclusion that defendant rented the house in which he was found with the key in his pocket and certainly was not inconsistent with that conclusion. Possession of contraband “can be established by evidence which shows the contraband was discovered on the premises occupied by and under the control of the accused with no equal right of access and occupancy in others.” Mitchell v. State, 150 Ga. App. 44, 47 (2) (256 SE2d 652) (1979). That defendant was in the house alone and possessed the key to the house, in which no evidence was found that any other person occupied it, is certainly sufficient evidence to show the defendant was in possession of the contents of the house. The jury was not required to believe the defendant’s testimony that an unidentified woman invited him to the house and had just left before the police arrived. Thus we hold that sufficient evidence was presented from which a reasonable factfinder could find defendant guilty beyond a reasonable doubt.

2. The trial court did not err in instructing the jury that they were permitted to draw the inference that the owner or lessee of a house is in possession of the property contained in the house. Defendant argues the charge was not supported by the evidence because the evidence did not show he was the lessee of the house in question. The evidence presented by the defendant showed he was the lessee of “a home” in the neighborhood where he was arrested. If the house rented by defendant was one other than the house in which he was arrested, defendant failed to establish that fact by the testimony of his landlord. While the evidence did not show conclusively that the defendant was the lessee of the house in question, neither did it preclude the jury from so finding. The instruction did not improperly assume a finding that defendant was the lessee of the house in question, but merely stated that an inference of possession was permitted “if you find that a person owns or is a lessee of a house . . . .”

3. The trial court did not err in denying defendant’s motion for mistrial when, in response to the prosecutor’s question concerning whether defendant gave a place of employment when he was asked routine questions at the time of arrest, the arresting officer testified that the defendant would not talk to him. The defendant objected on the ground the response raised an improper inference concerning how the defendant came into possession of almost $500 found in his possession at the time of arrest when the defendant had a right to remain silent. Any prejudicial effect of the testimony was cured by the trial court’s instruction that the defendant had a right to remain silent and the testimony that the defendant had refused to make a statement was not to be considered by them. Thus, the trial court’s denial of the motion for mistrial will not be disturbed on appeal because it did not amount to an abuse of discretion. See Schirato v. State, 260 Ga. 170 (5) (391 SE2d 116) (1990); Crawford v. State, 256 Ga. 585 (2) (351 SE2d 199) (1987).

4. We agree, however, that the trial court erred in admitting in violation of OCGA § 17-7-210 (c) the testimony of the arresting officer that defendant had responded, when questioned about the key found in his pocket at the time of arrest, that the key was to the front door of the house. It is uncontroverted that the statement was not furnished to defendant in compliance with his written request. Nevertheless, the improper admission of such a statement does not require reversal if it is highly probable that the error did not contribute to the verdict. See Wallin v. State, 248 Ga. 29 (5) (279 SE2d 687) (1981). Another officer, in the course of identifying the physical evidence seized at the house, testified that one of the exhibits was a key to the front door of the house found on the defendant’s person. However, except for the testimony concerning defendant’s statement about the key, no other evidence was presented to show how the officer knew the key fit the lock on the front door of the house. Because the statement at issue in this case could be interpreted as an admission of possession of the premises (and thus the contents in the premises), “we are unable to say with reasonable certainty that no harm resulted from the State’s failure to obey the statutory requirements of OCGA § 17-7-210, and accordingly, we must reverse.” Davis v. State, 198 Ga. App. 375, 377 (2) (401 SE2d 581) (1991). Moreover, although the defendant did not raise this argument as a ground to suppress the statement, no evidence was presented that defendant had been advised of his right to remain silent and his right to counsel at the time defendant made the statement.

Decided June 2, 1992.

Peter D. Johnson, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Barbara A. Smith, Assistant District Attorneys, for appellee.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0521.
    THRASHER v. THE STATE.
    (419 SE2d 516)
   Johnson, Judge.

A jury found James Thrasher guilty of possession of cocaine. Thrasher appeals from the verdict and the denial of his motion for a new trial.

1. Thrasher contends in his first enumeration that the trial court erred in allowing the state to improperly place his character in issue by introducing evidence of a prior conviction for possession of marijuana.

On direct examination, Thrasher stated that he told the arresting officer, “Well, I don’t mess with dope.” On cross-examination, the district attorney asked Thrasher, “When you said you don’t deal with dope, that’s a lie, isn’t it?” Thrasher responded, “No, it’s not a lie.” Thereafter, Thrasher’s prior conviction for the possession of marijuana was admitted into evidence. The court allowed the prior conviction into evidence for the purpose of showing impeachment by former contradictory statement and as character evidence, having made the determination that Thrasher placed his character in issue by his statement to the officer.

The instant case is controlled by the opinion in Mitchell v. State, 158 Ga. App. 628 (281 SE2d 260) (1981). The trial court in Mitchell allowed the introduction of the defendant’s prior conviction for possession of marijuana for the purpose of contradicting the defendant’s testimony. On appeal, this court did not reach the issue of whether the defendant placed his character in issue in relaying the conversation with the officer. This court stated: “Assuming that defendant’s statement was not sufficient to place his character in issue because he was repeating a statement made to a third party and not directly responding to an attorney’s question, the defendant may still be impeached by contradictory statements. . . . Code Ann. § 38-1802 [now, OCGA § 24-9-82] provides that a witness may be impeached by disproving the facts testified to by him.” Id. at 630. Similarly, in the case at bar, we need not reach the issue of whether Thrasher’s character was improperly placed into evidence. Thrasher’s statement that he did not “mess” with marijuana could be construed as a denial by him that he had ever been involved with drugs. Therefore, Thrasher was properly impeached by his former contradictory statement. We find no error.

• 2. Thrasher contends in his second enumeration that the trial court erred in admitting his prior conviction for possession of marijuana as similar transaction evidence. Since the evidence was properly admitted for the purpose of impeachment, we need not reach this issue.

3. Thrasher further contends that the trial court abused its discretion by permitting additional deputies in the courtroom, thereby compromising his right to an impartial jury.

Although Thrasher enumerates as error the presence of “additional deputies” in the courtroom, he failed to indicate in the transcript the number of deputies that were present or make a motion for a mistrial. The trial court, however, indicated for the record that three deputies were in the courtroom, which had four doors, and the deputies were seated back in the general audience section of the courtroom. The court further noted that Thrasher was dressed in civilian clothing and sitting at the front table with his two attorneys.

“ ‘ [The] defendant has a right to be tried in an atmosphere free of partiality created by the use of excessive guards except where special circumstances (exist), which in the discretion of the trial judge, dictate added security precautions.’ [Cits.]” (Emphasis supplied.) McKenzey v. State, 138 Ga. App. 88, 90 (225 SE2d 512) (1976). We find that the trial court in the case sub judice did not abuse its discretion in permitting three deputies to be present in the courtroom.

4. In his fourth enumeration of error, Thrasher contends that the trial court erred in admitting a de minimis amount of cocaine residue into evidence, where there was evidence showing that others had access to the pipe or the area where the pipe was found. Thrasher raised no such objection at trial.

Decided June 2, 1992.

James J. Dalton II, for appellant.

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

At the trial of the instant case, Thrasher did not raise an objection regarding the introduction of evidence of a de minimis amount of cocaine where there was evidence that others had equal access to the pipe.

Grounds enumerated as error but not raised during trial may not be raised for the first time on appeal. Hoover v. State, 198 Ga. App. 481, 482 (402 SE2d 92) (1991). “ ‘Enumerated errors which raise issues for the first time ... on appeal present nothing for review. (Cit.)’ [Cit.]” Holland v. State, 197 Ga. App. 496, 497 (398 SE2d 810) (1990).

Accordingly, the verdict of the jury shall not be disturbed.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0744.
    WOODS v. THE STATE.
    (419 SE2d 513)
   Johnson, Judge.

Morgan Woods was convicted of driving under the influence of alcohol and driving after being declared an habitual violator. The trial court, as part of a probated sentence, ordered Woods to pay $2,500 to the county as “restitution” for medical expenses he incurred while being held in the county jail awaiting trial. The medical treatment provided to Woods was for an injury he received prior to his arrest and unrelated to the charges on which he was tried. The court also ordered Woods to pay $185 for operation, staffing, and construction of the county jail. Woods does not challenge his conviction, but appeals only from his sentence.

1. Woods asserts that the trial court erred in requiring him to pay “restitution” for medical expenses he incurred in jail while awaiting trial. Woods argues that his own medical expenses are not a proper subject for restitution. Further, he claims that even if the court properly ordered repayment of the medical expenses, it erred in failing to conduct an evidentiary hearing as to the amount of the expenses.

Woods is correct in asserting that the statutory definition of restitution does not include repayment of his own medical expenses. “ ‘Restitution’ means any property, lump sum, or periodic payment ordered to be made by any offender to any victim by any ordering authority.” OCGA § 17-14-2 (7). For purposes of restitution, “ ‘[damages’ means all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced. . . .” OCGA § 17-14-2 (2). “The statutory scheme requires the court to determine what type of civil action could be maintained by the victim, and to determine what the proper measure of damages would be in such a civil action.” (Punctuation and citations omitted.) Lomax v. State, 200 Ga. App. 233, 234 (407 SE2d 462) (1991). In the instant case, there is no victim suffering damages caused by Woods’ habitual violator or DUI offenses. The county in this case is not a victim as anticipated by the statutory scheme. The medical expenses incurred by Woods while in custody were not caused by the acts for which he was sentenced. Accordingly, Woods’ reimbursement to the county for his own medical expenses does not fall under the statutory meaning of restitution.

In construing the entire judgment, however, we find that the trial court did not intend to order restitution to a victim. “A séntence must be construed as any other judgment and the usual canons of construction should be applied. It must be reasonably construed in accordance with the intent of the trial court if the language discloses such intent clearly and without doubt or obscurity. The language should be given its ordinary meaning and should be construed to give effect to the intention of the judge who imposed it if possible. The language used by the trial judge is unimportant if the purpose and intent in pronouncing sentence is clear. The judgment or sentence must be construed in its entirety. [Cit.]” Watts v. State, 141 Ga. App. 127, 132 (7) (232 SE2d 590) (1977); see Alliston v. State, 183 Ga. App. 462, 464 (3) (359 SE2d 220) (1987). At Woods’ sentencing hearing the judge stated, “I want you to reimburse Madison County in the amount of $2,500.00 or thereabout for medical expenses that have been incurred on your behalf.” In the written judgment, Woods was ordered to pay $2,500 to the State Probation Office. Moreover, this requirement was set forth in the section of the judgment entitled “Other Conditions of Probation.” The judge clearly did not intend the above expenses to be taxed against Woods as restitution to a victim. Instead, he intended to order Woods to reimburse the county for the expenses as a condition of his probation. This is not a case where medical treatment was provided by a county to an inmate who became ill or was injured while he was in the county’s custody. Rather, the injury in this case occurred prior to Woods’ arrest and was not related to his offenses. Under these circumstances, the court did not err in conditioning Woods’ probation upon repayment of his own medical expenses.

. “Here we have the defendant attacking the probated portion of his sentence which is certainly in his favor in allowing him to serve [it] outside the confines of the penitentiary. We have found no authority which would prevent the court from determining the terms and conditions of his probation which is within the sound discretion of the court in probating it. The court could very well have imposed [the maximum] sentence upon the defendant without any portion of it being probated. We find no abuse of discretion by the court in requiring the above payments as a condition of probation.” Giddens v. State, 156 Ga. App. 258, 262 (4) (274 SE2d 595) (1980).

Decided June 2, 1992.

Michelle C. Feinberg, Robert W. Lavender, for appellant.

Lindsay A. Tise, Jr., District Attorney, Francis J. George, Assistant District Attorney, for appellee.

Although the trial court properly ordered reimbursement • of Woods’ medical expenses as a condition of probation, it failed to hold a hearing as to the value of the medical care provided to Woods. The State concedes that the record is bare as to the amount of the expenses and that the court should have held such a hearing. We agree with the parties. Accordingly, the court’s order of reimbursement, of $2,500 as medical expenses must be vacated and the case remanded to the trial court to set an amount of reimbursement based on competent and relevant evidence.

2. Woods also contends that the trial court erred in ordering him to pay a $185 fee for operation, staffing and construction of the county jail. We agree. There are no statutes which specifically authorize charging criminal defendants with the costs for operation, staffing and construction of jails. This case is very similar to and is controlled by Walden v. State, 258 Ga. 503, 504 (371 SE2d 852) (1988). We hold that the $185 fee is not taxable to Woods in the absence of specific statutory authority for imposing such a fee, and therefore reverse the trial court’s order to the extent it holds otherwise.

Judgment affirmed in part, reversed in part and case remanded.

Carley, P. J., and Pope, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0038.
    HOBSON v. KROGER COMPANY.
    (419 SE2d 492)
   Birdsong, Presiding Judge.

This is an appeal from the order of the state court granting the motion for summary judgment in behalf of appellee, The Kroger Company, in a suit for damages arising from the slip and fall of a child, age five years and eight months, in appellee’s store.

The trial court in granting the motion for summary judgment noted: “The duty of the landowner to an invitee is to exercise ordinary care to warn of hazardous or perilous conditions, that requirement being based upon the landowner’s superior knowledge of conditions known to him, but not to the invitee. Inherent in that requirement is the ability of the invitee to appreciate the danger; however, the landowner is not an insurer of an invitee’s safety. In this case, the fact that the [appellee’s] employee was in the process of removing the spill and was observed by the invitee while doing so, demonstrates due diligence and at a minimum the exercise of ordinary care by the [appellee].” (Emphasis supplied.)

The pertinent deposition testimony of the child, Brandon Hob-son, taken when he was age seven-and-a-half, is as follows: “A. [Brandon Hobson] Well, it was up there by the dairy thing where the sodas and stuff were, and this broken glass or broken bottle of Sprite, I didn’t notice it on the floor; and when I was walking up there with my sandals and karate suit on, I just slipped over. . . . Q. [Appellee’s Counsel] You said it was a Sprite? Do you remember what the liquid was? A. It was Sprite. Q. It was a broken bottle? A. Yes. Q. Did you see the broken bottle? A. (Witness nods negatively). Q. Had you been running around the aisle? A. No. I was walking and then I slipped over. Q. Did you notice anybody in the aisle? . . . A. Yes. Q. Who did you see? A. I thought I saw someone was sweeping — getting it up with a mop. Q. So you saw somebody cleaning up the spill with a mop? A. Yes. And I was trying to look at this thing over there but — something over there, and then I said one little peep won’t hurt because I won’t go too far, so I walked up there and then on accident, I slipped. Q. What were you looking at when you slipped? A. I was looking at one of those Coca-Cola bottles, the back of it. Q. You weren’t looking on the floor? A. No. Q. Prior to your falling, had you seen anything on the floor? ... A. Well, I saw some Sprite. I said one little peep wouldn’t hurt. . . . Q. Before you fell, did you see anything on the floor? A. Actually, I did. Q. What did you see? A. I saw some liquid and a broken bottle. Q. Do you know that liquid can be slippery? A. Yes. Q. And then you walked into the liquid? A. And then I tripped over and fell on my back and then I was cut. Actually, I can’t remember. . . . (Emphasis supplied.) Held:

Examining the deposition testimony of Brandon Hobson, we conclude that his uncontroverted testimony, together with all reasonable inferences to be drawn therefrom, reveals that the then five-and-three quarter-year-old child saw spilled Sprite and a broken Sprite bottle in the aisle, he observed a lady mopping the substance, immediately thereafter his attention diverted from the spill and focused on a nearby Coca-Cola bottle being displayed for sale, and he believed it would be okay to take a “peep” at it, because he was not going to be going that far. As he moved toward the Coca-Cola bottle, he was not looking at the floor; he then slipped in the spilled beverage falling upon the broken glass.

OCGA § 51-3-1 provides that “[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” In Augusta Amusements v. Powell, 93 Ga. App. 752, 754 (92 SE2d 720), we held: “Code § 105-204 [currently OCGA § 51-1-5 with minor modifications] provides as follows: ‘Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.’ As applied to this case, this Code section would relate to that degree of care which the child should be required to exercise for his own safety, and, as to a child of seven years, the question would be one for the jury to decide. [Cit.] As to the duties of adults toward children, the rule of law is that children of tender years are entitled to a degree of care proportioned to their ability to foresee and avoid perils which may be encountered [cit.]; that by reason of this ‘due care’ or ‘ordinary care’ to avoid injury to another may involve a greater duty owed to small children lawfully upon premises than to older persons [cit.]; and accordingly the degree of care may vary with the capacity of the invitee. But, regardless of the age or capacity of the injured person, if there is no breach of any legal duty on the part of the defendant toward such person, there can be no legal liability.” In this regard, “ ‘“[t]he customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” ’ ” Alternan Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). “ ‘ “The law is clear that the basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. . . . Thus, the basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.” ’ ” Froman v. George L. Smith &c. Auth., 197 Ga. App. 338, 339 (398 SE2d 413). “We recognize . . . that even in premises liability cases . . . the age of the injured person is relevant. Because a child may be unable to appreciate a danger and, therefore, to have knowledge of the hazard equal to that of the owner/occupier, an owner/occupier may be held to a higher standard of care toward a child than toward an adult.” Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 392 (3) (394 SE2d 345). However, in this case, it is clearly and palpably shown by the evidence that the child was aware in fact of the existence of the hazard and therefore had knowledge of the hazard equal to that of the owner of the premises. Summary judgment law does not require the defendant to show that no issue of fact remains, but rather that no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue regarding the child’s ability to appreciate the existence and scope of the danger posed by the spill, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion. Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515).

Decided May 12, 1992

Reconsideration denied June 3, 1992

Mays & Slayton, W. Roy Mays III, Linda J. Dees, Thomas A. Cox, Jr., for appellant.

Smith, Gambrell & Russell, Richard W. Brown, David A. Handley, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Carley, Presiding Judge.

text:
    A92A0257.
    STINSON et al. v. ALLSTATE INSURANCE COMPANY.
    (419 SE2d 509)
   Carley, Presiding Judge.

The relevant facts in this declaratory judgment action are as follows: Richard and Joan Kaminski, who are residents of Columbia County, are afforded liability coverage under a policy of insurance issued by appellee-plaintiff. Seeking to recover for the death of their son, appellant-defendants, who are residents of Houston County, filed suit against the Kaminskis in Columbia County. Thereafter, appellee initiated in Columbia County the instant action against the Kaminskis and appellants, seeking a declaration that, under the terms of its policy, it did not afford coverage to the Kaminskis for the death of appellants’ son. Since the Kaminskis are residents of Columbia County, venue of appellee’s action was proper as to them. However, appellants challenged venue and moved that, as to them, appellee’s action be transferred to Houston County. The trial court denied appellants’ motion, but certified its order for immediate review. Pursuant to the grant of their application for interlocutory appeal, appellants appeal the denial of their motion.

Appellee was clearly entitled to seek a declaratory judgment as against the Kaminskis. “ ‘By refusing to defend [the Kaminskis in appellants’ suit], [appellee] loses all opportunity to contest the [liability] of the [Kaminskis] or [appellants’] right to recover, and exposes itself to a charge of and penalty for breach of contract. By defending, it incurs considerable expense and may waive the claim of immunity. It is therefore of exceptional importance to both [appellee] and [the Kaminskis], if not indeed to [appellants], to know at the earliest possible moment whether the policy covers the loss or not. [Appellee’s] liability under the policy and the [Kaminskis’] liability for [the death of appellants’ son] are indeed two separate transactions.’ [Cit.]” LaSalle Nat. Ins. Co. v. Popham, 125 Ga. App. 724, 729 (1) (188 SE2d 870) (1972).

It is likewise clear that appellants are not improper parties to appellee’s instant declaratory judgment action. “ ‘Under numerous decisions of this court in relation to the subject-matter of . . . insurance, all persons interested in the contract should be joined, in order properly to adjudicate the question of liability or non-liability of the insurer.’ [Cits.] [Appellants] had such interest in the policy of insurance [issued to the Kaminskis] as made them proper parties to the [instant] action of [appellee] to determine its liability to pay any judgment that might be secured by [appellants] against [the Kaminskis].” St. Paul Fire &c. Ins. Co. v. Johnson, 216 Ga. 437, 439 (117 SE2d 459) (1960).

It follows that, although the Kaminskis and appellants may be adversaries in their own underlying lawsuit, they have a joint interest in the policy issued by appellee. That joint interest is in having the policy serve as a potential source of satisfaction of any judgment that appellants may secure in their action against the Kaminskis. It has long been recognized that a plaintiff “can join as defendants all who jointly compel [his] service [under a contract] and receive the benefits thereof. [Cit.] The . . . court[s] of the county of either of the persons sued has jurisdiction of the suit against all, though one of them may not reside in that county.” Hamby v. Collier, 136 Ga. 309 (la, 2) (71 SE 431) (1911). By virtue of the underlying tort action, appellants and the Kaminskis have, in effect, jointly compelled appellee’s performance under its contract and they seek to receive the joint benefit thereof. Since the Kaminskis are residents of Columbia County, venue of appellee’s instant action would be proper in that county as against appellants. Therefore, the trial court correctly denied appellants’ motion to transfer. Compare Harper v. Gunby, 215 Ga. 466, 469 (3) (111 SE2d 85) (1959) (wherein the defendants in a declaratory judgment action had no joint contractual interest).

Decided May 21, 1992

Reconsideration denied June 3, 1992

Sell & Melton, Russell M. Boston, Doye E. Green, Jr., for appellants.

Thompson & Smith, Larry I. Smith, Allgood & Daniel, Robert L. Allgood, for appellee.

Judgment affirmed.

Pope and Johnson, JJ., concur.


author: Beasley, Judge.

text:
    A92A0314.
    GILBERT v. CITY OF MANCHESTER.
    (419 SE2d 487)
   Beasley, Judge.

Gilbert was convicted in a recorder’s court of driving under the influence of alcohol (OCGA § 40-6-391 (a)) and with improper equipment (OCGA § 40-8-7). He appealed under OCGA § 40-13-28 to the superior court, which affirmed.

The superior court ruled against Gilbert on two issues. These rulings are enumerated as error. As to the first, the superior court reviewed the appeal “on the record,” as required by OCGA § 40-13-28 and Walton v. State, 261 Ga. 392, 394 (2) (405 SE2d 29) (1991), and rejected Gilbert’s challenge to the sufficiency of the evidence, since “there is no transcript of the hearing, no transcript prepared by recollection and no stipulation of facts as authorized by OCGA § 5-6-41 (g) and (i).” See Ward v. State, 188 Ga. App. 372, 374 (3) (373 SE2d 65) (1988). As to the second, the superior court rejected Gilbert’s assertion that his conviction should be reversed under OCGA § 40-13-23 (a), because it provides that the court does not have jurisdiction “unless the defendant shall first waive in writing a trial by jury,” and no written waiver of his right to jury trial is in the record. The superior court relied on Nicholson v. State, 261 Ga. 197, 200 (6a) (403 SE2d 42) (1991), that “[i]n those probate court cases in which there is no record that a timely objection to trial without a jury was made, the right to a jury trial is waived. . . . Cases holding to the contrary, e.g., Rustin v. State, 192 Ga. App. 775 (386 SE2d 535) (1989), are disapproved.” This was also the holding in Division 1 of Walton, supra at 393.

1. Gilbert argues that the absence of a transcript results in an insufficiency of the evidence to support his convictions, since, as held in Walton at 394, “[t]he appellant ... is entitled to a review of the record which ensures that the evidence has been received in conformity with statutory and constitutional standards and that it supports the conviction, including application of the standards set out in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). If the conviction is properly supported by the evidence, the conviction would stand; if not, an acquittal would be required.”

Decided May 7, 1992

Reconsideration denied June 3, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, for appellant.

William G. Hamrick, Jr., District Attorney, for appellee.

Walton states in its sub-text that “[u]nder [OCGA § 40-13-28] the lower court judge shall certify the record but the burden remains on the defendant to ensure that the record includes the issue upon which he or she seeks review as well as the lower court’s ruling on such issue.” Fn. 5 at 394. A defendant must request that a hearing on a misdemeanor charge be reported and transcribed, unless the trial court on its own motion orders that this be done. Parker v. State, 154 Ga. App. 668 (1) (269 SE2d 518) (1980); see OCGA § 5-6-41 (b); Odom v. State, 196 Ga. App. 293 (2) (396 SE2d 27) (1990). Walton did not change this requirement. An appellate court is for the correction of errors of law, Parker, supra at 669, and where the defendant has not requested that the proceedings be reported and transcribed, an enumeration of error complaining of this relates to no ruling by the trial court and thus presents nothing for consideration. “[T]he mandate of the superior courts is to review asserted errors of law in the proceedings below under general appellate principles.” Walton, supra at 394. Gilbert did not show error from the record. The lack of a transcript does not result in a reversal of the conviction.

2. Gilbert argues that the holding in Nicholson regarding waiver of jury trial is inapplicable because he, unlike Nicholson, was not tried in probate court.

The statutory scheme at issue in Nicholson was Article 2 of Chapter 13 of Code Title 40 (OCGA §§ 40-13-20 through 40-13-33). Article 2 applies to probate courts and municipal courts of incorporated towns and cities. See OCGA §§ 40-13-20; 40-13-21 (a). Nicholson was convicted in probate court. Gilbert was convicted in a municipal court. The argument in both cases is that the convictions must be reversed under OCGA § 40-13-23 (a) because of the absence of a written waiver of jury trial in the record. Nicholson, which rejected the argument, controls.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A0412.
    BONILLA v. THE STATE.
    (419 SE2d 495)
   Birdsong, Presiding Judge.

Jose Z. Bonilla appeals from the jury verdict of guilty and judgment of conviction of armed robbery and possession of cocaine, the sentence, and the denial of his new trial motion. He has enumerated three errors. Held:

1. The State introduced in evidence without objection two videotapes taken of appellant, one made during the robbery and one made during appellant’s subsequent visit to the store. Appellant asserts the trial court erred in particular by denying his counsel’s request to play the videotape taken at the store during the robbery in his counsel’s closing argument.

Appellant admitted in closing argument at trial and by way of an admission in judicio in his appellate brief (Lingerfelt v. State, 255 Ga. 180 (3) (366 SE2d 250); Brownlow v. City of Calhoun, 198 Ga. App. 710, 711 (402 SE2d 788)) that the person appearing in the videotape which was taken after the robbery was appellant. Pretermitting the question whether it was error to deny appellant’s request to show the videotapes during closing argument (compare Hodges v. State, 194 Ga. App. 837 (3) (392 SE2d 262) with North Carolina v. Whiteside, 383 SE2d 911 (Sup. Ct. N.C.) and Lancaster v. Texas, 772 SW2d 137 (3-5) (CA Tex.); see also Ramsey v. State, 165 Ga. App. 854, 859 (7) (303 SE2d 32)) is the issue of harmless error. In this instance the videotape of the robbery was viewed twice by the jury during trial and was viewed again by the jury at their request in open court during a pause in their deliberations. Moreover, defense counsel was not prohibited from making and did make reference to the videotape in closing argument. We find any error in refusing to allow appellant’s counsel to make use of the videotapes during his closing argument was harmless beyond a reasonable doubt (particularly in light of the overwhelming evidence of appellant’s guilt contained in the trial record). See Palmer v. State, 186 Ga. App. 892, 897 (3) (369 SE2d 38).

2. Appellant asserts the trial court erred by admitting in evidence “mug shots” of appellant. The mug shots ultimately taken to the jury room had been cropped of any written information. However, appellant asserts (without citation to that portion of the record which would affirmatively support this particular claim) that the mug shots “were seen by the jury” as a police officer was testifying; and that the photographs then contained, at the bottoms thereof, the name of the police department taking the pictures, the inmate number, and the date the photographs were taken.

Appellant objected at trial to the admission of the photographs. His objections were specifically grounded upon a claim that “the prejudicial effect [of the photographs] would outweigh what is in the case,” that the photographs were not relevant as “they [were] not taken at the time of the robbery,” and another photograph taken in 1988 was not relevant as it was taken three years prior to the robbery.

Following appellant’s initial objection to the photographs and outside the presence of the jury, the prosecutor stated he was going to have a police officer testify as to the date each photograph was taken, and that before the photographs were displayed to the jury the written dates on each would be cut off. Thereupon, the trial court allowed the officer to be questioned about the photographs before they-were cropped, but in essence instructed the prosecutor not to let the jury see the photographs “with the police department indication- on them, the officer just has to be careful not to exhibit them to the jury.” (Emphasis supplied.) The court then allowed the officer to give foundation testimony concerning the photographs, ruling and directing that: “As long as I instruct the Officer and Counsel not to show it to the jury. I will overrule the objection though.” The officer was present at the time these instructions were given, and in the absence of affirmative rebuttal evidence of record both he and counsel are presumed to have followed the trial court’s procedural directive not to show the photographs to the jury. See Dykes v. State, 191 Ga. App. 879, 880 (2) (383 SE2d 210); see also Butts v. State, 193 Ga. App. 824, 826 (2) (389 SE2d 395) (presumed public officials; including assistant district attorneys, perform duties lawfully and in good faith). Thereafter, the officer testified without timely objection as to the date when each photograph of appellant was taken. Our examination of the record reveals no affirmative showing therein that the procedural directive of the trial judge, not to show the jury the photographs, was violated either by the officer or by counsel. Moreover, when the State offered the photographs in evidence, appellant renewed his objections previously made to their introduction. He also stated: “I interpose the objection that the jury might have had the opportunity to see them in the present size, after the court cuts off the bottom part they will then get a smaller photograph, the jury may wonder what part was cut off and it might be prejudicial and' I will renew my objections.” (Emphasis supplied.) The trial court overruled this objection “with the instructions that scissors will be used to cut off anything with time or place on the photograph.”

The difference between appellant’s alleged factual allegations on appeal that the mug shots were seen by. the jury and his contention and inherent concession at trial that the jury might have had the opportunity to see them is too obvious to necessitate further elucidation. Secondly, the photographs reflect on their face that the order to crop the written information contained thereon was complied with fully.

Examination of the exhibits contained in the trial record reveals further that the cropped photographs which were actually provided to the jury were not per se identifiable as “mug shots.” We will not speculate on appeal regarding the conduct of the jury; that is, we will not speculate as to whether the jury may have themselves speculated as to the photographs’ source of origin. See Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510); cf. Dimauro v. State, 185 Ga. App. 524 (3) (364 SE2d 900). And, in view of the posture of this record, we find the trial court did not err in admitting the photographs in question. Flanagan v. State, 193 Ga. App. 408, 409 (1) (388 SE2d 29); compare O’Toole v. State, 258 Ga. 614, 615-616 (2) (373 SE2d 12); Stanley v. State, 250 Ga. 3 (1) (295 SE2d 315); Clark v. State, 249 Ga. 18 (287 SE2d 523) and Woodard v. State, 234 Ga. 901, 902 (2) (218 SE2d 629).

Additionally, appellant has failed to cite this court to any pages in the record where he specifically and timely raised the federal and state constitutional issues which he attempts to assert on appeal in regard to the introduction of these photographs. We will not cull the record on behalf of either an appellant or the State in search of errors or objections. Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463). Constitutional issues which are not affirmatively shown by the record to have been timely raised and ruled upon at the trial level are not preserved for appeal. Meders v. State, 260 Ga. 49, 54 (2 b) (389 SE2d 320); Whatley v. State, 196 Ga. App. 73, 75 (1) (395 SE2d 582) and cases cited therein.

3. Appellant asserts the trial court erred in admitting his statement into evidence when the preponderance of the evidence showed that it was not knowingly, voluntarily, and intelligently made. The trial court listed in detail certain evidence heard by the court regarding this issue and tacitly adopted this evidence as part of his findings of fact. Thereafter, the trial court made specific findings that appellant was given a Miranda warning prior to any questioning, that he knowingly gave up (waived) his Miranda rights, that there was no coercion, duress, or promise made to the accused prior to the making of the statement, and that the statement was voluntarily made. “ ‘Unless clearly erroneous, a trial court’s factual determinations relating to the credibility of witnesses and the admissibility of confessions will be upheld on appeal.’ ” Sumpter v. State, 260 Ga. 683 (2 b) (398 SE2d 12). Even conflicting evidence introduced at a Jackson-Denno hearing will not automatically cause a trial court’s findings of fact to be clearly erroneous. Gadson v. State, 197 Ga. App. 315, 316 (1) (398 SE2d 409). “In determining whether the trial court’s ruling regarding the voluntariness of a confession was clearly erroneous, an appellate court may look to all the evidence contained in the record.” Id.

The record establishes that appellant was properly and timely given a Miranda warning and that he waived these rights before questioning. The waiver of rights form, which was signed legibly by appellant, was a form printed in Spanish and routinely used for Spanish speaking persons; the waiver form was also read to appellant in Spanish by the person used as an interpreter, and no promises, coercion or threats were made to obtain appellant’s signature thereon. Appellant was very cooperative. Although he was “medium” but not heavily drunk at the hospital, he appeared to the police officer to understand the person acting as the interpreter and to understand what was happening. The interpreter who had been raised by a Spanish speaking family testified that appellant did not have a problem understanding her and he answered all the questions. We are satisfied that the record clearly establishes, by at least a preponderance of the evidence, that appellant’s statement was freely and voluntarily made, and also that the findings of fact of the trial judge were not clearly erroneous.

Decided May 13, 1992

Reconsideration denied June 3, 1992

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

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 2 and 3. I concur in the result with respect to Division 1 but not with its bases. The use of evidence during closing argument is generally permissible. See Ramsey v. State, 165 Ga. App. 854, 859 (7) (303 SE2d 32) (1983). This includes a videotape. Hodges v. State, 194 Ga. App. 837, 838 (3) (392 SE2d 262) (1990).

From what was said at trial, it appeared that defendant wanted, in closing argument, to stop the videotape at certain frames. The equipment used for showing the tape to the jury was not capable of this, and defendant had made no arrangements for accommodating this mechanically. For this reason, a favorable ruling would have been a hollow victory.

Insofar as disallowing the entire video or portions of it to be shown again repeatedly during defendant’s oral argument, I agree that he was not prejudiced by the jury’s not seeing it yet a fourth or more times during this phase of the trial.


text:
    A92A0503.
    YARBROUGH v. SAS SYSTEMS, INC. et al.
    (419 SE2d 507)
   Beasley, Judge.

Yarbrough filed this complaint against SAS Systems, Inc., and its chief executive officer, Turner.

In Count 1, he alleged that he had been discharged by SAS without his vacation pay, pre-notice pay, a bonus, and expense reimbursement.

Count 2 sought general and punitive damages based on the following version of events. He alleged Yarbrough and Turner settled the dispute as to what he was owed by an agreement resulting in a letter from SAS to Yarbrough, over the signature of Turner, assigning a CAD software system to Yarbrough. Yarbrough registered this system with its designer and manufacturer, Visionics. Turner reported that Yarbrough had stolen this system and pressured the district attorney into bringing the matter before the grand jury, which indicted Yarbrough for forgery and theft. This resulted in Yarbrough’s being jailed, booked, and mug-shot, being terribly embarrassed and humiliated, and spending large sums of money in attorney fees. The district attorney agreed to dismiss the forgery charge for Yarbrough’s plea of nolo contendere to the theft charge. Yarbrough committed no theft, but chose to plea bargain in exchange for a small fine and no incarceration, rather than face the risk of spending several years in jail. The only evidence of criminal activity by Yarbrough came through the words and falsehoods of Turner. Defendants’ actions were intentional, designed to harm Yarbrough, and caused him great emotional distress.

Turner testified that after he discharged Yarbrough, he tried to access the CAD software system but a notation came on the computer screen that the hardware protection device was missing. Turner contacted Visionics, which sent him a letter on SAS stationery which it had received. The letter bore Turner’s signature and stated that the right to use and license the CAD system had been transferred to Yarbrough. Turner testified that he did not write or sign the letter. He contacted the district attorney’s office and was instructed to report the matter to the police department. An investigation ensued, and after the investigating officer testified before the grand jury, Yarbrough was indicted for the felony theft of the computer hardware device and first-degree forgery of the letter. On his plea of nolo contendere to theft, Yarbrough was fined $500 and ordered to return the CAD system.

Yarbrough testified that after he was discharged, Turner agreed during a telephone conversation to transfer ownership of the CAD system to him, and Turner sent him a letter authorizing him to register the new ownership with the software manufacturer. He sent a copy to Visionics.

The court granted defendants’ motion for summary judgment, concluding in part that Yarbrough’s entry of a plea of nolo contendere to the charge upon which he bases his claim for malicious prosecution eliminates the requisite element of a prosecution terminated in his favor.

1. To the extent that Yarbrough has asserted a claim for malicious prosecution, see Ellis v. Knowles, 90 Ga. App. 40, 42 (1) (81 SE2d 884) (1) (1954), a conviction of the prosecuted offense based on the entry of a plea of nolo contendere does not constitute a termination of the prosecution in favor of the defendant, precluding an action for malicious prosecution. See Laster v. Star Rental, 181 Ga. App. 609 (1) (353 SE2d 37) (1987); see generally Coker v. K-Mart Corp., 197 Ga. App. 701, 702 (399 SE2d 249) (1990). Punishment is not favorable termination. The granting of the defendánts’ motion for summary judgment was proper.

2. Fortson v. Hopper, 242 Ga. 81, 82, 83 (247 SE2d 875) (1978), described a plea of nolo contendere: it is a privilege; it constitutes a plea of guilty except that it cannot work any civil disqualification upon defendant; it is an assertion that defendant does not desire to contest the truth of the charges; it was designed to cover situations where the side effects of a plea of guilty in addition to the penalties would be too harsh.

Fortson lists some of those side effects, and OCGA § 17-7-95 (c) provides that “[e]xcept as otherwise provided bylaw, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose ...” This does not mean that such a plea may not be proven as fact by the criminal defendant when, as a plaintiff, he sues for malicious prosecution. But it does not constitute favorable termination of the prosecution for the purpose of such a cause of action. Cf. Proulx v. State, 196 Ga. App. 303 (1) (395 SE2d 668) (1990). It is a shield and not a sword.

3. To the extent that Yarbrough asserted a claim for the intentional infliction of emotional distress, it fails. “Liability [for this tort] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” Restatement, Second, Torts § 46, Comment d, p. 73 (1965). See Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991); see also Tuggle v. Wilson, 248 Ga. 335, 336 (2) (282 SE2d 110) (1981).

Decided May 20, 1992

Reconsideration denied June 3, 1992

William R. Hurst, for appellant.

Russell T. Bryant, for appellees.

He presented no evidence of any such conduct on defendants’ part. Summary judgment as to this claim was proper also. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

4. The only additional claim Yarbrough is pursuing at this juncture is for the CAD system. He agreed to return the system as part of his sentence for theft. His assertion of this claim is barred by his plea to the criminal charges.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Cooper, Judge.

text:
    A92A0089.
    EVANS et al. v. SOUTHERN GENERAL INSURANCE COMPANY.
    (419 SE2d 526)
   Cooper, Judge.

Appellee brought suit on a contract against appellants, husband and wife, for $5,523.06. Appellants timely answered the complaint, generally denying the allegations made therein. On February 7, 1991, appellee served appellants with its request for admissions. The record contains a letter from appellee’s counsel to appellants’ counsel dated May 29, 1991, notifying counsel that appellants’ response to the request for admissions had not been received and advising appellants that if said response were not received by June 5, 1991, appellee would move for summary judgment. On June 28, 1991, appellee moved for summary judgment pursuant to OCGA §§ 9-11-36 and 9-11-56 for failure to answer its request for admissions. In their response to appellee’s motion for summary judgment, appellants included, as exhibits, an answer to appellee’s first interrogatories (even though no interrogatories appear in the record) and a response to appellee’s request for admissions. The certificate of service attached to the responses indicates that service was made on June 19, 1991 by mail. On August 14,1991, the trial court granted appellee’s motion for summary judgment after reviewing the entire record and determining that the request for admissions remained unanswered; that the time allowed by law to answer had expired; that the admissions were deemed admitted; that no issue of fact or law remained; and that appellee was entitled to $5,523.06. This appeal followed.

In their three enumerations of error, appellants contend the trial court erred in granting summary judgment to appellee because the judgment was against the weight of the evidence and appellants were denied due process by the court’s refusal to allow appellants to amend the pleadings or to allow additional time to answer the request for admissions. In their brief, appellants contend that they moved for an extension of time to answer the request for admissions at the hearing on the motion for summary judgment and that the court denied the extension, advising appellants that the proper motion was to withdraw the request for admissions.

Decided June 3, 1992.

Arleen E. Gardenhire, for appellants.

“If a party served with a request for admission does not serve an answer or objection and does not move for an extension of time or to withdraw the admissions resulting from a failure to answer, the matter stands admitted. [Cits.] ‘Any matter admitted under this section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.’ [Cits.]” (Emphasis deleted.) Albitus v. Farmers & Merchants Bank, 159 Ga. App. 406 (1) (283 SE2d 632) (1981). “The court may permit withdrawal or amendment of the admission when the presentation of the merits of the action will be subserved thereby, and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action on the merits. [Cits.] There is no transcript of the hearing on the motion for summary judgment and the motion for withdrawal or amendment of the admission. In the absence of a transcript, we must assume that appellee made the proper showing that his case would be prejudiced by granting the motion to withdraw or amend the admission, for there is a presumption that a trial judge performed faithfully and lawfully the duties devolving upon him by law, and enumerations of error dependent upon consideration of evidence heard by a trial court will, absent a transcript, be affirmed. [Cit.] Further, this court has held that whether to allow responses to a request for admissions after the statutory time for filing has passed is within the discretion of the trial judge, ‘and his decision will not be interfered with unless it clearly appears that this discretion has been abused.’ [Cit.]” Davenport v. Smith, 157 Ga. App. 870, 871 (278 SE2d 691) (1981). We find no such abuse of discretion. Moreover, by failing to answer appellee’s request, appellants admitted that they lived at 410 New Lane Street in Griffin, Georgia; that on or about August 17, 1989, the dwelling was damaged by a fire caused when appellants left food cooking on the stove after they went to work; and that appellants owe appellee $5,523.06. Thus, the trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

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

Crews, Salter & Gisler, H. Burton Crews, for appellee.


text:
    A92A0266, A92A0267.
    BANK SOUTH, N.A. v. ROSWELL JEEP EAGLE, INC.; and vice versa.
    (419 SE2d 522)
   Carley, Presiding Judge.

Over a period of several weeks, appellee-plaintiff Roswell Jeep Eagle, Inc. (RJE) sold five used cars to Heritage Auto Leasing, Inc. and accepted as payment therefor five documentary drafts. These documentary drafts were deposited with RJE’s bank and forwarded to appellee-defendant Bank South (Bank) for payment, but they were eventually returned for insufficient funds. Thereafter, RJE brought suit in several counts, seeking to recover for the Bank’s alleged mishandling of the five documentary drafts. The case was tried before a jury and a verdict in favor of RJE was returned. In Case No. A92A0266, the Bank appeals from the judgment entered on the jury’s verdict and, in Case No. A92A0267, RJE cross-appeals.

Case No. A92A0266

1. Pursuant to OCGA § 11-4-302 (a), a payor bank, such as the Bank in the instant case, may be liable if it fails to pay, return or give notice of the dishonor of a demand item, other than a documentary draft, by “its midnight deadline.” However, the five “items” at issue in the instant case are “documentary drafts” as defined in OCGA § 11-4-104 (1) (f). Accordingly, the Bank’s potential liability for its handling of the five documentary drafts must be determined under OCGA § 11-4-302 (b). That statute provides that a payor bank must act “within the time allowed for acceptance or payment of [a properly payable] item.” Thus, if the documentary drafts were “properly payable,” the Bank was not required to act by “its midnight deadline” under OCGA § 11-4-302 (a), but was required to act “within the time allowed” under OCGA § 11-4-302 (b).

The “time allowed” for a payor bank to accept or pay a “properly payable” documentary draft that has been presented to it under a letter of credit is as provided in OCGA § 11-5-112 (1). However, the five documentary drafts at issue in the instant case were not presented to the Bank under a letter of credit. OCGA § 11-5-112 (1) does not, therefore, establish the “time allowed for acceptance or payment” by the Bank.

“Presumably the time allowed [a payor bank to act with regard to documentary drafts not presented under a letter of credit] could be specified, but more likely it is to be found in the practice and behavior of the parties to the transaction or the persons in the trade.” 1 White & Summers, Uniform Commercial Code, § 17-6, p. 856 (3d ed. 1988). In the instant case, there was no definite specification of “the time allowed” for the Bank to act on the five documentary drafts presented to it for payment. Compare Union Bank of Benton v. First Nat. Bank in Mt. Pleasant, 621 F2d 790, 796 [10] (5th Cir. 1980). The only specification was to the effect that the documentary drafts presented to the Bank were “sight drafts.” At most, this denominates the documentary drafts as being “demand” items. As previously noted, however, where a demand item is also a documentary draft, the payor bank need not comply with the midnight deadline that is established for other demand items by OCGA § 11-4-302 (a). Accordingly, the mere denomination of a documentary draft as a “sight draft” would not otherwise serve to establish any definite “time allowed” for the payor bank to act pursuant to OCGA § 11-4-302 (b). “It is clear that the ‘midnight deadline’ applicable to the handling of checks and other demand items is not applicable to the handling of documentary drafts. Banking institutions are permitted a reasonable or ‘seasonable’ time within which to present, remit or return. [Cit.]” Memphis Aero Corp. v. First American Nat. Bank, 647 SW2d 219, 224 [4] (Tenn. 1983) (wherein documentary drafts were denominated merely as “sight drafts”).

It follows that the trial court erred in giving the following charge: “Instruments payable on demand include those payable at sight or on presentation and those in which no time [for] payment is stated. If you find that the drafts in this case were not sight drafts, then the payor bank must pay or return the instrument within a reasonable time or a seasonable time.” (Emphasis supplied.) This charge, in effect, erroneously instructed the jury that the bank was entitled to a reasonable or seasonable time within which to act only if the documentary drafts were not sight drafts. In truth, the bank was entitled to a reasonable or seasonable time within which to act notwithstanding that it had been presented sight documentary drafts for payment. See Memphis Aero Corp. v. First American Nat. Bank, supra at 224 [4].

2. The refusal to give the following request to charge is enumerated as error: “Under the Uniform Commercial Code, [the Bank] is not accountable for the amount of any of [RJE’s] drafts unless you find that the drafts were presented to [the Bank] and that the drafts were properly payable. If you find that the drafts were presented and were properly payable, [the Bank] still is not accountable for the amount of any of the drafts unless you also find that [the Bank] did not act on the drafts within a reasonable time. A reasonable time is determined by the nature of the instrument, any usage of banking or trade, and the facts of the particular case.”

This request constitutes an accurate statement of the applicable law. A payor bank “has liability under [OCGA § 11-4-302] (b) only for [documentary drafts that are] ‘properly payable.’ [A documentary draft] is not properly payable unless there are sufficient funds in the account to pay it. . . . [Also the] payor bank may hold [a documentary draft] for ‘the time allowed.’ [Where, as here, there is no definite specification as to the “time allowed,”] [t]hat time may be quite long.” 1 White & Summers, Uniform Commercial Code, § 17-6, pp. 856-857 (3d ed. 1988). The charge as given by the trial court did not otherwise instruct the jury on these accurate and applicable legal principles. It follows that the trial court erred in refusing to give it.

3. Of the five documentary drafts in the series, the last two had been returned for insufficient funds almost immediately after presentment to the Bank. RJE does not contend that these last two documentary drafts were not otherwise returned by the Bank “within the time allowed.” Instead, RJE urges that its recovery under OCGA § 11-4-302 (b) for the last two documentary drafts would be authorized under an estoppel theory. According to RJE, the Bank is estopped to deny liability on the last two documentary drafts because it did not comply with OCGA § 11-4-302 (b) as to the first three.

Liability under OCGA § 11-4-302 (b) “is not liability on the document itself but is liability for the mishandling (delay in giving notice or return) of the item.” (Emphasis omitted.) Memphis Aero Corp. v. First American Nat. Bank, supra at 222. Accordingly, if the Bank did not “mishandle” the last two of the five documentary drafts, it incurs no liability thereon pursuant to OCGA § 11-4-302 (b). See generally Pennsylvania Nat. Turf Club v. Bank of West Jersey, 385 A2d 932, 935 [2] (N.J. Sup. Ct. App. Div. 1978). It follows that the trial court erred in denying the Bank’s motion for a directed verdict as to its non-liability under OCGA § 11-4-302 (b) for the last two documentary drafts. “Although a party can by estoppel waive a defense, it cannot create a right of action in another party. [Cit.]” Southern R. Co. v. A. O. Smith Corp., 134 Ga. App. 219, 222 (3) (213 SE2d 903) (1975). RJE has no independent right of action under OCGA § 11-4-302 (b) for the “mishandling” of the last two documentary drafts and estoppel cannot be relied upon to create one.

4. There appears to be no jury issue as to whether the five documentary drafts were “presented” to the Bank for payment, the only dispute being whether the Bank acted thereon within the “time allowed” after presentment. Accordingly, although it would not have been error to give the Bank’s requested charge on “presentment,” it was not reversible error to fail to give that charge.

5. As an alternative theory of the Bank’s liability, RJE relied upon OCGA § 11-3-419 (1) (a, b), which provides: “An instrument is converted when: A drawee to whom it is delivered fpr acceptance refuses to return it on demand; or [a]ny person to whom it is delivered for payment refuses on demand either to pay or to return it. . . .” The trial court’s denial of the Bank’s motion for a directed verdict as to its non-liability under this conversion theory is enumerated as error.

“The detention of an instrument voluntarily delivered is not wrongful unless and until there is demand for its return. Demand for a return at a particular time may, however, be made at the time of delivery; or it may be implied under the circumstances or understood as a matter of custom. . . . ‘Refuses’ is meant to cover any intentional failure to return the instrument, including its intentional destruction. It does not cover a negligent loss or destruction, or any other unintentional failure to return.” 6 Anderson, Uniform Commercial Code, § 3-419:1 (2), p. 418 (3d ed. 1984).

No explicit or implicit demand for the return of the documentary drafts by any particular time was made at the time of their delivery to the Bank. Compare New Ulm State Bank v. Brown, 558 SW2d 20, 24 [1] (Tex. Civ. App. 1977) (specific instruction not to hold the item after maturity or for the convenience of the payor). The only specification here was the denomination of the documentary drafts as “sight drafts.” Standing alone, this might be sufficient to classify the documentary drafts as “demand” items pursuant to OCGA § 11-3-108. Because the five demand items were also documentary drafts, however, the Bank was specifically authorized pursuant to OCGA § 11-4-302 (b) to accept, pay or return them within a reasonable or seasonable time rather than required to do so within the time limit generally applicable to other demand items. Memphis Aero Corp. v. First American Nat. Bank, supra at 224 [4]. It is OCGA § 11-4-302 (b), not OCGA § 11-3-108, which governs as to the “time allowed” the Bank for responding to the original presentment of the documentary drafts to it for payment. OCGA § 11-4-102 (1). Accordingly, an otherwise untimely failure on the part of the Bank to accept, pay or return the documentary drafts pursuant to their original specification merely as “sight drafts” may be actionable as a failure to comply with OCGA § 11-4-302 (b), but could not constitute an intentional “refusal” to comply with a demand for payment or return so as to be actionable as a conversion under OCGA § 11-3-419. Compare New Ulm State Bank v. Brown, supra at 24 [1].

It is undisputed that, when subsequent inquiry was made as to why the documentary drafts had yet to be paid or returned, the Bank responded by returning them for insufficient funds. Thus, in response to the first demand for payment or return that was ever made after the original presentment of the documentary drafts for payment, the Bank returned them. In so doing, the Bank may have acted untimely and incurred liability under OCGA § 11-4-302 (b), but it did not incur liability under OCGA § 11-3-419 for conversion of the documentary drafts. It follows that the trial court erred in denying the Bank’s motion for a directed verdict as to its non-liability under a conversion theory.

6. RJE had no direct dealings whatsoever with the Bank and was not its customer. Compare First Ga. Bank v. Webster, 168 Ga. App. 307, 308 (1) (308 SE2d 579) (1983). The Bank was merely the payor bank as to documentary drafts which had been made payable to RJE. OCGA § 11-4-101 et seq. constitutes a comprehensive compilation of the legal duties imposed upon the Bank as to items presented to it for collection in its capacity as the payor bank. “Action or inaction approved by [OCGA § 11-4-101 et seq.] . . . constitutes the exercise of ordinary care and, in the absence of special instructions, action or nonaction consistent with clearing-house rules and the like or with a general banking usage not disapproved by [OCGA § 11-4-101 et seq.], prima facie constitutes the exercise of ordinary care.” OCGA § 11-4-103 (3). Accordingly, if the Bank violated OCGA § 11-4-302 (b), it violated the applicable standard of ordinary care for a payor bank and would be liable to RJE. Conversely, if it complied with OCGA § 11-4-302 (b), it complied with the applicable standard of ordinary care for a payor bank and would not be liable to RJE. It follows that the trial court erred in denying the Bank’s motion for a directed verdict as to its non-liability under a common law negligence theory. “[W]here[, as here,] the [Uniform Commercial] Code provides a comprehensive remedy for parties to a transaction, a common law action would be barred. [Cit.]” First Ga. Bank v. Webster, supra at 308 (1). See also Brannon v. First Nat. Bank of Atlanta, 137 Ga. App. 275, 278 (3) (223 SE2d 473) (1976).

7. There is no evidence which would authorize a finding of the Bank’s liability for punitive damages or attorney’s fees. Accordingly, assuming without deciding that punitive damages and attorney’s fees can ever be recovered in an action against a payor bank predicated upon an alleged violation of OCGA § 11-4-302, the trial court erred in failing to grant the Bank’s motion for a directed verdict as to its non-liability for those elements of damage in the instant case.

8. The judgment is reversed with direction that the trial court enter judgment in accordance with the Bank’s motions for a directed verdict and that a new trial be conducted as to the limited issue of the Bank’s liability under OCGA § 11-4-302 (b) for the face amount of the first three documentary drafts.

Case No. A92A0267

9. RJE’s enumerations have been considered and found' to be without merit or moot.

Decided June 3, 1992.

Kilpatrick & Cody, Thomas C. Harney, Timothy H. Kratz, for appellant.

John C. Bach, Robert J. Hulsey, for appellee.

Judgment in Case No. A92A0266 reversed with direction. Judgment in Case No. A92A0267 affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0476.
    MORRIS v. THE STATE.
    (419 SE2d 733)
   Carley, Presiding Judge.

Appellant and co-defendants Johnny Lee Davis and Francine Jackson were tried before a jury on charges of burglary and aggravated assault. Guilty verdicts were returned against appellant and Davis and a not guilty verdict was returned against Jackson. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates as error the denial of his motion to sever his trial from that of his co-defendants.

“Whether or not a motion for severance should be granted rests in the sound discretion of the trial court, but severance should be granted ‘before or during the trial whenever it appears “necessary to achieve a fair determination of the guilt or innocence of a defendant.” (Cit.)’ [Cit.]” Terry v. State, 190 Ga. App. 570-571 (1) (379 SE2d 604) (1989). The facts relevant to appellant’s motion for severance are as follows: At trial, appellant’s co-defendants were called as witnesses for the State. Compare Thomas v. State, 199 Ga. App. 586, 588 (5) (405 SE2d 512) (1991), rev’d on other grounds, 261 Ga. 854 (413 SE2d 196) (1992). After the co-defendants gave testimony on direct examination which was inculpatory of appellant, appellant was prepared to do more than merely cross-examine them. Compare Kimbrough v. State, 254 Ga. 504, 505 (2) (330 SE2d 875) (1985); Thomas v. State, supra at 588 (5). Appellant was prepared to impeach them by introduction of their prior convictions. The trial court correctly refused to allow appellant to do so. Since they had not placed their own character into evidence, appellant’s co-defendants could not be impeached by proof of their prior convictions. OCGA § 24-9-20; Williams v. State, 257 Ga. 761, 762 (3b) (363 SE2d 535) (1988).

However, the trial court did err in refusing to grant appellant’s motion to sever. The State is not entitled to secure appellant’s conviction at a proceeding wherein the State’s witnesses are not subject to impeachment. See Gilstrap v. State, 250 Ga. 814, 816 (2) (301 SE2d 277) (1983); Martinez v. State, 189 Ga. App. 69 (1) (375 SE2d 123) (1988). “Despite the benefits of joinder, it is clear that an accused’s right to a fair trial takes precedence. If the consolidation of defendants at trial hinders a fair determination of each defendant’s guilt or innocence, then the defendants must be tried separately.” Magouirk v. State, 158 Ga. App. 517, 518 (2) (281 SE2d 283) (1981).

Decided June 3, 1992.

Cannon & Meyer Von Bremen, Michael S. Meyer Von Bremen, for appellant.

The error was not harmless. Compare Thomas v. State, 199 Ga. App., supra at 591 (5), fn. 3; Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757) (1989). Absent the testimony of the co-defendants, the evidence as to appellant’s guilt was not overwhelming and the State obviously considered the testimony of appellant’s co-defendants important enough to its case to call them as State’s witnesses. “ ‘[I]n view of the importance of the testimony of the witness [es] sought to be impeached, [the denial of appellant’s motion to sever] was necessarily harmful and demands a reversal of the case.’ [Cit.]” Martinez v. State, supra at 71 (1). See also Gilstrap v. State, supra at 817 (2).

2. Appellant enumerates the general grounds.

“[T]he rule that a felony conviction is not to be had on the uncorroborated testimony of an accomplice applies only when the accomplice is the sole witness upon whose testimony the [S]tate relies. [Cits.]” (Emphasis in original.) McDaniel v. State, 158 Ga. App. 320 (279 SE2d 762) (1981). In the instant case, the State introduced evidence other than the testimony of appellant’s co-defendants, including evidence of the victim’s pre-trial identification of appellant as one of his attackers. “ ‘ “Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support the verdict. (Cit.)” [Cit.]’ [Cit.]” Williams v. State, 198 Ga. App. 725, 726 (1) (402 SE2d 796) (1991). Moreover, the testimony of each of the co-defendants was sufficient to corroborate the testimony of the other, “although not as to all material facts. [Cit.]” Jones v. State, 235 Ga. 103, 104 (3) (218 SE2d 899) (1975). See also Garner v. State, 72 Ga. App. 819 (35 SE2d 317) (1945). The evidence was not overwhelming, but it was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Appellant’s remaining enumerations of error relate to his sentence and are, therefore, moot.

Judgments reversed.

Pope and Johnson, JJ., concur.

Britt R. Priddy, District Attorney, L. Earl Jones, Assistant District Attorney, for appellee.


author: Andrews, Judge.

text:
    A92A0659.
    PRUDENTIAL METAL SUPPLY CORPORATION et al. v. ATLANTIC FREIGHT SALES COMPANY.
    (419 SE2d 520)
   Andrews, Judge.

Atlantic Freight Sales Company (Atlantic) sued Prudential Metal Supply Corporation d/b/a Prudential Southern Building Material et al. (Prudential) for amounts claimed due under a contract for the sale of goods governed by the Uniform Commercial Code. The trial court granted summary judgment in favor of Atlantic in the amount of $17,500, and Prudential appeals.

In support of its motion for summary judgment, Atlantic relied upon the affidavits of Witter and Corcoran. Witter, president of Atlantic, deposed that Prudential agreed to purchase certain materials for $17,500; that the materials were sold “as is”; that Prudential inspected the materials at the Atlantic warehouse, accepted them, took delivery, and failed to pay Atlantic’s invoice for $17,500. The invoice was attached to the affidavit. Corcoran, who was an employee of Prudential at the time of the transaction, stated that he had authority to purchase necessary materials for Prudential; that he inspected materials at Atlantic’s warehouse, and agreed to purchase a portion of those materials for $17,500; that the sale was a final sale and there was no agreement concerning the return of the materials; that a portion of the materials was moved to Prudential’s Georgia office and later sold by Prudential; and, the remainder was shipped to Prudential’s office in Massachusetts. In opposition to summary judgment, Prudential filed the affidavit of its chief operating officer, Kolikof, who deposed that he had personal knowledge of the transaction between Atlantic and Prudential; that the agreement was for the purchase of nail guns, spare parts for nail guns, nails and staples, which were represented by Atlantic to be current models, sorted, packed and labeled; that Corcoran had no authority to accept the material on behalf of Prudential; that because of the difficulty of determining the condition of the materials at Atlantic’s warehouse, Prudential agreed to transport the materials to its warehouse for a complete inspection to determine whether they would be accepted; that the materials were transported to Prudential’s warehouse in Massachusetts, inspected and rejected because they did not conform to the representations made by Atlantic; and, that Atlantic was promptly notified of the rejection. Prudential continues to hold the materials for return to Atlantic.

We must construe the facts and any inferences that may be drawn from these contradictory affidavits in favor of Prudential, the party opposing summary judgment. At a minimum, there are factual disputes as to whether the goods were to be purchased “as is,” or whether Atlantic made representations to which the goods failed to conform; whether Corcoran accepted the goods at the Atlantic warehouse after a reasonable opportunity for inspection; or, whether the goods were delivered to Prudential, inspected at that time, and rejected as nonconforming, and whether Prudential accepted and sold a part of the goods, or rejected the whole.

“The buyer must pay at the contract price for any goods accepted.” OCGA § 11-2-607 (1). The buyer is entitled to accept or reject goods which fail to conform to the contract by rejecting or accepting the whole, or by accepting any commercial unit or units (see OCGA § 11-2-105.(6)), and rejecting the rest. OCGA § 11-2-601. Acceptance occurs when, after a reasonable opportunity to inspect the goods, the buyer indicates the goods are conforming or that he will take them despite the nonconformity, or the buyer acts in a manner inconsistent with the seller’s ownership. OCGA § 11-2-606. Acceptance of any part of a commercial unit is acceptance of the whole unit. OCGA § 11-2-606 (2). Within a reasonable time after delivery or tender, the buyer is entitled to reject nonconforming goods under the provisions of OCGA § 11-2-602 if the buyer seasonably notifies the seller of the rejection. SPS Indus. v. Atlantic Steel Co., 186 Ga. App. 94, 98 (366 SE2d 410) (1988) (rejection under OCGA § 11-2-606 ordinarily a question of fact). Moreover, even after acceptance, the buyer has a right to revoke acceptance under the provisions of OCGA § 11-2-608 for nonconformance that substantially impairs the value of the goods. Griffith v. Stovall Tire &c. Inc., 174 Ga. App. 137, 139 (329 SE2d 234) (1985) (whether revocation of acceptance accomplished under OCGA § 11-2-608 is ordinarily a factual question). Revocation is an available remedy even where the seller has attempted to limit its warranties by use of “as is” language under OCGA § 11-2-316. Esquire Mobile Homes v. Arrendale, 182 Ga. App. 528, 529 (356 SE2d 250) (1987).

Whether Prudential acted within the scope of these provisions to accept or reject the goods at issue presents factual questions precluding summary judgment.

Judgment reversed.

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

Decided June 3, 1992.

Walker & Bailey, Wayne A. Bailey, for appellants.

Rice & Keene, Kirk W. Keene, for appellee.

       Since the applicable statute of frauds has not been raised by Prudential as an affirmative defense in its pleadings, by motion, or otherwise, no issue is presented as to whether the asserted contract complies with the writing requirements of OCGA § 11-2-201. Brantley Co. v. Simmons, 196 Ga. App. 233, 234 (395 SE2d 656) (1990).


text:
    A92A0732.
    B. J.’S FLOORING, INC. v. T. C. INTERIORS, INC. et al.
    (419 SE2d 528)
    Decided June 3, 1992.

      Sims, Fleming & Swan, Alan H. Swan, for appellant.

      Allen, Kelley & Sowell, D. Lynn Kelley, for appellees.
   Cooper, Judge.

Appellant, a nonresident sub-contractor, brought an action against appellees, alleging nonpayment of sums due under a contract. Appellees filed an answer and counterclaim against appellant and subsequently moved to dismiss the complaint on the grounds that appellant had not complied with the registration requirements of the Nonresident Contractors Act, Ga. L. 1978, p. 309 § 2 at 738 (codified at OCGA § 48-13-37.) The trial court dismissed the complaint without prejudice and this appeal followed.

“ ‘ “An appeal from an order dismissing the plaintiff’s claim is premature when there is a counterclaim pending in the court below.” [Cits.] . . . (T)he pendency of the counterclaim plus the absence of a determination by the trial judge that there was no just reason for delay and express direction for entry of judgment under . . . [OCGA § 9-11-54 (b)] (cits.) prevented the order from being final and (directly) appealable. This, coupled with the appellant’s failure to follow the applicable procedure for review under (OCGA § 5-6-34 (b)) (cits.), subjects the instant appeal to dismissal (as premature).’ [Cit.]” Fasse v. Sexton, 193 Ga. App. 9 (387 SE2d 17) (1989).

Appeal dismissed.

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