text:
    77844.
    CHRISTIAN v. THE STATE.
    (379 SE2d 807)
   Beasley, Judge.

Defendant, convicted of aggravated assault (OCGA § 16-5-21 (a) (2) and (c)), Count 2, and possession of a firearm during commission of a felony (OCGA § 16-11-106 (b) (1)), Count 3, appeals.

Viewing the evidence with every inference and presumption in favor of the verdict, Thomas v. State, 173 Ga. App. 810, 812 (2) (328 SE2d 422) (1985), it shows that on January 4, 1986, defendant’s sister-in-law called the police to report a domestic dispute between defendant and her sister, his common-law wife, and that defendant had a gun. Upon arriving at the apartment, Officer Hicks found defendant’s wife crying and defendant absent. Defendant arrived during the questioning of the wife and a scuffle ensued which resulted in the officer’s shoulder being separated and defendant being arrested for battery.

After being released on bail, defendant obtained a copy of the police incident report, which made him very angry because he felt he had been harassed and treated improperly by the officers.

During the day and evening of January 14, defendant consumed copious amounts of alcohol and decided to get even with the police. At approximately 1:00 a.m. on January 15, he went to a gasoline station near the apartments and placed a call to 911. The call was taped as is standard. The caller identified himself as James Alexander and reported a domestic dispute in an apartment in the building next to defendant’s. He also gave a phone number.

Upon arriving at the apartments, Sgt. White got out of his marked patrol car and was shot at three times. One of the bullets passed within two to three feet of him and another hit, about chest high, a van parked in front of his car. A .38 caliber slug was recovered from the van. Sgt. White saw muzzle flashes coming from the darkened end of one of the apartment buildings. The officers later located a bullet crease in the roof of a taxicab parked between the area of the muzzle flashes and Sgt. White’s car.

After checking the area and finding no one, the officers went to the apartment where the dispute had been reported. A woman resident informed the officers no one there had called, everything was fine, and her child and she had been asleep.

Detective Green was in charge of the investigation. The phone number given was traced to a residence six miles away and the resident knew nothing of it. Det. Green recalled the prior incident involving Officer Hicks at these apartments. Officer Hicks identified defendant’s voice on the 911 call tape.

Arrest and search warrants were obtained and executed at 6:00 a.m. on January 16. Four empty .38 shell casings were found on the dresser in defendant’s bedroom. The gun was not located and defendant and his wife denied knowledge of the gun and shooting. They said they heard the shots but were both in the apartment. The second bedroom was not searched because two children were asleep in it.

Defendant was arrested, read his Miranda rights, and taken to the station where he remained in an interview room from approximately 7:00 a.m. until 8:55 a.m., when he was read his Miranda rights again. He signed a waiver of them. He initially said the casings were from his and his brother Eddie’s shooting on New Year’s and they had come from Eddie’s .38. Eddie was interviewed and denied owning a .38.

Det. Green called Sheriff’s Deputy Stan Christian, defendant’s cousin. Deputy Christian listened to the tape and also identified the voice as defendant’s. Deputy Christian then asked to talk with defendant and spent about thirty minutes with him. He said no promises or threats were made to defendant and, although defendant did not admit the shooting to him, the deputy deduced that defendant had done it because he cried and acted remorseful.

Deputy Christian told Det. Green that defendant wanted to talk to them. Defendant said he made the call, inventing a name and phone number and giving the number of an apartment in the building next to his. He lay in wait for the officers and fired two shots at Sgt. White, although at the time he did not know the officer’s identity. He ran to his apartment, threw the spent casings in the trash, and hid the gun under his children’s mattress. Defendant was still upset and asked one of the officers to take down his statement, which was done. Defendant signed each page of the statement. The officers obtained a consent to search from defendant and returned to the apartment where they found two .38 bullets under the mattress. The gun was not found.

The next day, when the officers went to the jail to talk with defendant, he refused. He carried with him a piece of paper on which another inmate had written suggestions for him; among them were “retract statement, witness to threats (wife)” and words to the effect that defendant was under stress and needed a psychiatric examination and alcohol treatment.

Defendant was indicted for the two charges set out above and for assault with intent to murder (Count 1) and battery against Officer Hicks on January 4 (Count 4). He was acquitted of Count 4 and the jury was unable to reach a verdict as to the remaining counts. On retrial, he was found not guilty on Count 1 and guilty on the remaining two counts. An out-of-time appeal was duly permitted by the trial court.

1. Defendant contends the evidence was legally insufficient to support his conviction because his confession was not corroborated as required by OCGA § 24-3-53.

“ ‘ “[P]roof of the corpus delicti is held to be sufficient corroboration.” (Cit.)’ Rosser v. State, 157 Ga. App. 161, 162 (2) (276 SE2d 672) (1981). See also Brown v. State, 167 Ga. App. 851 (307 SE2d 737) (1983); Patrick v. State, 169 Ga. App. 302 (2) (312 SE2d 385) (1983), aff’d 252 Ga. 509 (314 SE2d 909) (1984). The corroborating evidence or circumstances need not connect the defendant definitely with the perpetration of the offense. [Cits.] ‘(C)orroboration in any material particular satisfies the requirements of the law. (Cits.)’ Reynolds u. State, 168 Ga. App. 555 (1) (309 SE2d 867) (1983). In the instant case the corpus delicti was established by the victim’s testimony, which evidence corresponded with the confession in several respects.’ ” Kirksey v. State, 177 Ga. App. 428, 429 (2) (339 SE2d 401) (1986).

2. Defendant contends that the court erred in admitting his confession as it was taken in violation of his Federal Constitutional rights under the Fifth and Fourteenth Amendments. In the motion to suppress the confession it was contended that the confession was the result of mental and physical torture and harassment, as well as promises of favor made by the police.

During defendant’s first trial in May, the hearing required by Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) was held and the trial court determined that the confession was voluntarily given and denied defendant’s motion.

“The test of admissibility of custodial confessions is the preponderance of the evidence. [Cits.] To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. [Cits.] . . . Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. [Cits.]” Gates u. State, 244 Ga. 587, 590 (1) (261 SE2d 349) (1979).

The fact that defendant was held for one and a half hours before he was questioned does not require a different result. See Brooks v. State, 258 Ga. 20, 21 (1) (365 SE2d 97) (1988).

A rational trier of fact could have found the confession admissible by a preponderance of the evidence.

3. Defendant complains that the trial court’s sua sponte giving of the “Allen charge” [Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896)] was a violation of his Sixth and Fourteenth Amendment rights. Although referred to as the Allen charge, the charge actually given by the court is that contained in Vol. II, Suggested Pattern Jury Instructions, p. 198 and approved in Ratcliff v. Ratcliff, 219 Ga. 545 (134 SE2d 605) (1964) and Spaulding v. State, 232 Ga. 411, 413 (4) (207 SE2d 43) (1974).

The jury was instructed in the morning and indicated sometime after lunch that it was “hung” on Count 2. Before any action was taken, it then announced it was no longer “hung” but needed clarification on Count 3. It continued its deliberations before asking to be excused for the night. At some time the next morning, the jury communicated that it had “no unanimity on any count.” The judge advised counsel that he was going to give the Allen charge. Counsel for defendant stated that “the defense would object to that charge as being highly inflammatory and suggestive.”

After the approved pattern charge was given, the only reservation expressed by defendant was an inquiry as to whether the court had included in the instruction a reminder that the jury was not required to “subordinate their own opinions.” The court stated that it had so instructed and asked if there was anything else; no further objection was made.

The objection enumerated was not made at the trial and will not be considered here for the first time. Smith v. State, 187 Ga. App. 322, 324 (4) (370 SE2d 185) (1988).

Without deciding whether any objection has been waived by failure to make it after the charge was given, the giving of the charge sua sponte was not error. Sanders v. State, 257 Ga. 239, 243 (7) (357 SE2d 66) (1987); Short v. State, 256 Ga. 172, 174 (5) (345 SE2d 344) (1986).

4. Defendant contends that his sentence violated the Sixth, Eighth, and Fourteenth Amendments to the Federal Constitution in that it was disproportionate to the offenses committed. He received fifteen years to serve for assault on a peace officer with a deadly weapon and five years probation to follow for possession of a firearm during commission of a felony.

Generally, a sentence will not be reviewed by this court if it is within the statutory limit. Branch v. State, 182 Ga. App. 818, 819 (3) (357 SE2d 136) (1987). “Questions concerning the severity of a sentence, within legal limits, should be addressed to the sentence review panel. Tommie v. State, 158 Ga. App. 216 (1) (279 SE2d 510).” Lanzo v. State, 187 Ga. App. 616, 619 (7) (371 SE2d 119) (1988). Considering the circumstances, the sentence does not succumb to the Federal Constitutional claim. It is not grossly disproportionate so as to constitute cruel and unusual punishment. Rummel v. Estelle, 445 U. S. 263, 274 (100 SC 1133, 63 LE2d 382) (1980). Compare Solem v. Helm, 463 U. S. 277 (103 SC 3001, 77 LE2d 637) (1983).

Decided March 9, 1989.

Carl P. Greenberg, J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Elisabeth MacNamara, Robert M. Coker, John H. Petrey, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A89A0016.
    WATSON v. THE STATE.
    (379 SE2d 811)
   Sognier, Judge.

J. T. Watson was convicted by a jury of criminal trespass and he appeals.

Evidence adduced at trial showed that appellant owned a small barbecue restaurant, for which he purchased meat and other groceries at a local market. On occasions prior to the incident in question there had been some discussion between appellant and the market manager about appellant’s practice of purchasing large quantities of meat from the case, thereby leaving the market’s meat case empty for other customers. Appellant had been told that it was the market’s policy that restaurants could not buy cut meat from the meat case, but instead he could special order the pork butts he needed for his restaurant. On January 2, 1988 appellant traveled to the market to purchase supplies for the restaurant. He placed four pork butts from the meat case and several other items in his shopping cart and proceeded to the checkout counter. As appellant approached the checkout counter, the store’s manager and several other employees prevented him from paying for the groceries and leaving. An argument ensued and the market employees told appellant to leave. Appellant refused to do so without the items he hád selected and placed in his cart, and the police were summoned and arrested appellant.

1. In his first enumeration of error, appellant contends the trial court erred by failing to grant his motion for a directed verdict of acquittal. Appellant’s contention is premised on his argument that, under OCGA § 11-2-401 (2) and (3) (b), title to the pork butts had passed to appellant when he identified them and placed them in his cart and consequently appellant was not refusing to leave the premises, but merely refusing to abandon property which was rightfully his. We do not agree. Even assuming, without deciding, that title to the meat passed to appellant either because the seller had completed its performance with reference to physical delivery pursuant to OCGA § 11-2-401 (2) or because appellant had “identified” the meat pursuant to OCGA § 11-2-401 (3) (b), the fact that appellant had “title” to the meat could not serve as a basis for allowing him to ignore the manager’s demand that he leave, thereby violating a criminal statute. “[Sincerity of motive does not excuse the deliberate violation of criminal law in this case. OCGA § 16-7-21 [(b) (3)] provides that ‘(a) person commits the offense of criminal trespass when he [knowingly and without authority . . . [r]emains upon the land or premises of another person . . . after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.]’ [Appellant] admitted that such occurred. The possibility that [he had arguable title to the meat] did not entitle [appellant] to take the law into his own hands, rather than [leaving as requested and settling the matter of title under the civil law.]” Williams v. State, 181 Ga. App. 902, 903 (354 SE2d 184) (1987). Accordingly, the evidence did not demand a verdict of acquittal, and the trial court did not err by denying appellant’s motion for a directed verdict. See generally Loggins v. State, 169 Ga. App. 511, 512-513 (2) (313 SE2d 769) (1984).

2. Appellant next contends the trial court erred by refusing to give his requests to charge 1-4. However, as these charges related to appellant’s theory of title to the meat, as discussed in Division 1, supra, and no evidence was introduced by appellant to support his claim that he owned the meat, these requested charges were not adjusted to the evidence and the trial court thus correctly refused to give them. McNeese v. State, 186 Ga. App. 410, 411 (2) (367 SE2d 235) (1988).

3. We find no merit in appellant’s assertion that the trial court erred by denying his demurrer. Appellant argues that because the accusation did not contain language indicating that the person asking appellant to leave the premises identified himself as an authorized representative of the owner, an element of the crime was lacking. The accusation stated that appellant “did knowingly and without authority remain upon the land or premises of another . . . after receiving notice from an authorized representative of the owner or rightful occupant to depart.” “The legal sufficiency of the accusation or indictment depends upon the accusation as a whole. ‘An [accusation] is sufficiently technical and correct if it states the offense in the terms and language of the statute or so plainly that the jury may easily understand the nature of the offense charged. (OCGA § 17-7-54).’ [Cit.] ‘(A) defendant who was not at all misled to his prejudice by any imperfection in the indictment cannot obtain reversal of his conviction on this ground.’ [Cit.]” Manley v. State, 187 Ga. App. 773, 775-776 (2) (371 SE2d 438) (1988). We find that appellant could not have been misled by the language of the accusation, and that it sufficiently apprised appellant of the offense charged. Appellant could not have admitted to the allegations in the accusation and be innocent of the offense of criminal trespass. See Burden v. State, 187 Ga. App. 778, 779 (2) (371 SE2d 410) (1988).

Decided March 9, 1989.

William L. Kirby II, for appellant.

Andrew Prather II, Solicitor, Melvin E. Cooper, Assistant Solicitor, for appellee.

Moreover, appellant’s demurrer was filed shortly before trial. This was a special demurrer, and as such was not timely filed. “ ‘[S]uch motions must be made in writing upon the defendant’s being arraigned. [Cit.] Where such motions are not made at the proper time, they are deemed to have been waived. [Cits.]’ [Cits.]” Hardwick v. State, 158 Ga. App. 154, 155 (279 SE2d 253) (1981). Accordingly, the trial court did not err by denying appellant’s demurrer. See id.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0340.
    SNEED v. THE STATE.
    (379 SE2d 813)
   Sognier, Judge.

James Horner Sneed was convicted of the offense of theft by taking (motor vehicle) and he appeals.

Appellant contends in his sole enumeration of error that the trial court erred by denying his motion for new trial because the evidence was insufficient to support his conviction. At trial, the victim, Clarence Bryson, testified that when he and his wife departed for a long weekend vacation in November 1987, he left his 1983 Dodge Ram van locked and parked in the driveway and that upon their return the vehicle was gone. Bryson immediately contacted the police about the vehicle’s disappearance. Bryson testified that appellant had been performing improvements on Bryson’s home and that appellant had been allowed to use the van to transport building supplies. Bryson testified that appellant had also driven the van when he had accompanied Bryson on a trip to Michigan but that appellant did not have any authority to take the van or use it while Bryson was away on vacation.

When appellant was subsequently arrested in December 1987 in Lexington, Kentucky, the police found a parking garage ticket in his wallet which led the police to the victim’s van. The key used to operate the van was a duplicate of the victim’s key, and the license plate on the van was not the original plate but instead was the license plate for a 1974 Dodge van appellant had purchased in September 1987. Evidence was presented that the duplicate key was made at a True Value Hardware store and that such a store was near appellant’s Whitfield County residence.

Decided March 9, 1989.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

Appellant testified that he had never had a duplicate key made for Bryson’s van, that he had sold his 1974 van and placed the license plate in the back of Bryson’s van but did not put the license plate on Bryson’s van, and that Bryson brought the van to appellant in Kentucky and asked appellant to keep it for him.

We find the evidence sufficient to authorize a rational trier of fact to find appellant guilty of theft by taking (motor vehicle) beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although appellant argues there was no evidence that he broke into the vehicle or “hotwired” it, the jury would have been authorized to conclude from the evidence that appellant had had a duplicate made of the victim’s car key during a period when appellant was authorized to drive the vehicle and that appellant had used that duplicate key to take unlawfully Bryson’s van. While appellant asserts that his testimony proves, contrary to Bryson’s statements, that appellant’s possession of the van was with Bryson’s consent, “ [i]t is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. This court must view the evidence in a light most favorable to the jury’s verdict. [Cit.]” Blackman v. State, 178 Ga. App. 88, 89 (1) (342 SE2d 24) (1986). The trial court did not err by denying appellant’s motion for a new trial.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Benham, Judge.

text:
    77346.
    ROBERSON v. ENGLEHARD CORPORATION et al.
    (379 SE2d 524)
   Benham, Judge.

We granted appellant/employee’s application for discretionary review of his workers’ compensation case to determine whether the superior court erred in reversing and remanding appellant’s case to the State Board of Workers’ Compensation, based on the court’s finding that the board did not consider all the evidence. Having reviewed the record, we find that the lower court did err, and we reverse the judgment.

While running heavy equipment over rough terrain in the course of his employment with appellee/employer Englehard Corporation, appellant aggravated a previously-existing back condition. The injury, which occurred on March 14, 1986, and caused him to be totally disabled from April 14, 1986, to December 15, 1986, was found to be compensable. On December 29, 1986, appellant had resumed work and injured his back while carrying a pipe. The second injury was also later found to be compensable. Appellant’s physician, Dr. Cohn, testified, in effect, that the two injuries probably caused an additional extrusion of the pre-existing disk herniation. The administrative law judge stated that he considered all the evidence, and concluded that the employer was required to pay appellant accrued compensation benefits and attorney fees in a lump sum. The full board reviewed the award and “upon de novo consideration of all evidence,” made the ALJ’s decision its own. The employer appealed to the superior court, and the court, finding that the board did not consider all the evidence, reversed the judgment and remanded the case to the board to “consider all of the evidence and reconcile any conflicts in the evidence presented.” The court also decided that there was not sufficient evidence to support the conclusion that the employer defended the December 29 injury without reasonable grounds, and so it reversed the attorney fees award that had been made under OCGA § 34-9-108 (b) (1) (2). We agree with appellant’s assertion that the trial court erred in its judgment.

This case is controlled by Henderson v. Mrs. Smith’s &c. Foods, 182 Ga. App. 829 (2) (357 SE2d 271) (1987), which held that while there is “authority for remanding a case to the board based upon uncertainty that all the evidence had been considered [cits.] . . . , the mere failure to refer to all the evidence in the findings of fact does not establish that the board did not consider the evidence in its review of the matter. [Cits.] . . . The ALJ’s award detailed the facts upon which the conclusions were based . . . [and the board] predicated its findings and conclusions ‘upon de novo consideration of all the evidence,’ an express statement in its order . . . There is no basis for concluding as did the superior court that, as a matter of law, the board failed to fulfill its duty and considered only some of the evidence in its decision-making process. See OCGA § 34-9-103 (a) . . . [I]t is inconceivable that the evidence questioned by the court was not considered, although rejected, by the board. Because there is no requirement that specific reference be made to all the evidence, the trial court erred in remanding based on the omission of recitation of certain evidence. [Cits.] The order of the board was adequate to meet the legal requirements of OCGA § 34-9-103 (a).” Henderson also controls the attorney fees issue. Assessment of attorney fees based upon whether the employer acted without reasonable grounds in contesting the claim ordinarily is a factual issue. There being some evidence to support the board’s award of attorney fees, the record does not support the necessity of a remand to the board on this issue as a matter of law. Id. at 830.

Decided February 6, 1989

Rehearing denied March 10, 1989

Marcus, Moskowitz & Associates, Steven E. Marcus, for appellant.

Martin, Snow, Grant & Napier, R. Napier Murphy, Phillip A. Sibley, for appellees.

The superior court’s reliance on Carrollton Coca-Cola &c. Co. v. Brown, 185 Ga. App. 588 (365 SE2d 143) (1988), is misplaced. That case is distinguishable from Henderson and the one before us, because in the latter two cases there was an affirmative statement that the board did consider all the evidence, the findings and conclusions showed the board ruled on all of the issues in question, and the evidence supported its conclusions, although the rulings did not comport with the conclusions of the superior court. In Carrollton Coca-Cola, there is no such statement of consideration of all evidence, and it was shown that the board “failed to consider a salient issue which might have affected all issues.” Id. at 591. Based on the foregoing, we reverse the judgment of the superior court.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


text:
    77598.
    VINSON v. THE STATE.
    (379 SE2d 792)
   Benham, Judge.

In this appeal from his convictions for burglary and giving a false name to an officer, appellant’s enumerations of error concern the sufficiency of the evidence and the legality of his sentences. We affirm.

1. Appellant was arrested when he was discovered in the offices of a church at a time when they were not open to the public. The indictment charging hin^ with burglary alleged that he had entered the building with intnR to commit a (theft). At trial and on appeal, he has admitted all the elements of burglary except intent, and argues that the State failed to bear its burden of proof in that regard.

Decided March 1, 1989

Rehearing denied March 10, 1989

Richard Vinson, pro se.

Robert E. Wilson, District Attorney, Robert M. Coker, Nelly F. Withers, James W. Richter, Assistant District Attorneys, for appellee.

“ ‘ “Whether the defendant entertained an intent to commit a (theft) after entering is a matter for the jury to say, under the facts and circumstances proved. [Cit.] As a general rule the (S)tate must, of necessity, rely on circumstantial evidence in proving intent. [Cit.] And the fact that defendant may have failed in accomplishing his apparent purpose does not render a finding of burglary improper. [Cits.]” [Cits.]’” Prothro v. State, 186 Ga. App. 836 (1) (368 SE2d 793) (1988). Among the “facts and circumstances proved” here are that the offices where appellant was arrested contained items of value, including office machinery and postage stamps; that appellant had no identification or other papers in his possession; that appellant resisted the entry of first an employee and then the security officers who were called; that appellant lied to the arresting officers about his name and admitted doing so for the purpose of concealing his identity; and that although appellant claimed he had entered the office to copy some documents, he had no documents on his person and none related to him was found in the office. We note that even if appellant’s version of the facts was to be accepted, he has admitted an intent to use the church’s copying machine; taking the copies would have been a theft.

Considering the whole of the evidence, a rational trier of fact would have been authorized to find appellant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Prothro v. State, supra; OCGA § 16-10-25.

2. “ ‘[I]f the sentence is within the statutory limits, the appellate courts will not review it. [Cits.]’ ” Stephens v. State, 185 Ga. App. 546 (3) (365 SE2d 136) (1988). Since appellant’s sentences were within the statutory limits, his enumeration of error in that regard is without merit.

3. Appellant’s brief contains arguments on issues other than those presented by the two enumerations of error. “ ‘An enumeration of error may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. [Cits.]’ ” Jackson v. State, 186 Ga. App. 847 (3) (368 SE2d 771) (1988).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77750.
    BROWN v. THE STATE.
    (379 SE2d 598)
   Benham, Judge.

A jury convicted appellant of incest, rape, and cruelty to children. The trial court entered judgment on the three counts, all of which arose out of the same incident. On appellant’s motion for new trial, the trial court ruled that the rape count merged with the one for incest, and so it vacated the verdict and set aside the sentence imposed for incest. This appeal is from the denial of a new trial as to the judgment entered on the rape and cruelty to children counts. We find that appellant has enumerated a reversible error, and we reverse the judgment of conviction.

1. Appellant claims that the trial court erred in denying his motion for a continuance based on surprise with regard to the State’s intention to prove that appellant committed the crimes in question within four years of the date of the indictment, rather than on June 15, 1987, the specific date alleged in the indictment. Having reviewed the record, we agree with appellant’s position. Appellant based his alibi defense on the specific date given in the indictment, and at trial produced witnesses to support his denial of presence at the scene of the alleged crimes on the date in question. After he had presented virtually all of his evidence, the State, on cross-examination, began questioning appellant about where he had been on other Mondays in June. Appellant did offer alibis for the other dates, but because he had relied on the specific date given in the indictment as being the one that the prosecutors were going to use, he did not have witnesses at trial to corroborate his testimony about the other dates. Appellant’s counsel objected to the line of questioning and moved for a continuance of the trial based on surprise. In arguing the motion, the State’s attorney admitted that it did not intend to prove the particular date, but only that it happened “within four years and during the first part of June—from June 1 to June 15th. The young lady can’t tell us the exact date. All she knows is [that] it was a Monday in June.” During the State’s case on rebuttal, one of the State’s witnesses testified that the victim told him the rape occurred on a Monday, five to six weeks prior to the 19th of July, and that he picked June 15 as an “arbitrary date” because it was five weeks prior to the 19th. He also said that they put “on or about June 15th” in the warrant because they were not positive that it occurred on that date. The indictment did not contain the “on or about” language, and there is no other indication that appellant was put on notice before the time of trial that the time period in question was going to be anything other than June 15.

Under the circumstances, the trial court erred in denying appellant’s motion for continuance. “ ‘Where the State alleges in an indictment that the defendant committed a crime at a certain time, but at trial seeks to prove that the crime was committed at another time, surprising defendant and rendering worthless his alibi for the time alleged in the indictment, the [S]tate has failed to fulfill the requirement “that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial.” In these circumstances the defendant, upon his motion therefor, is entitled to sufficient time to prepare his defense in response to the newly-asserted time of the crime.’ ” Riles v. State, 155 Ga. App. 586 (271 SE2d 718) (1980). See also Caldwell v. State, 139 Ga. App. 279 (228 SE2d 219) (1976). While it is true that “[w]here the date alleged in the indictment is not a material element of the offense, the [S]tate may prove the offense as of any date within the statute of limitation,” appellant’s reliance on an alibi defense for the time alleged in the indictment entitled him to a continuance once he learned at trial that the State did not intend to prove the date alleged in the indictment. Arnold v. State, 167 Ga. App. 720 (1, 2) (307 SE2d 526) (1983). We reverse the conviction and remand the case for new trial.

2. Appellant contends that he had proof that the alleged victim had falsely accused others of rape, and that the trial court misapplied the rape shield statute (OCGA § 24-2-3) so as to exclude erroneously the testimonial proof. The trial court allowed appellant’s witnesses to testify in chambers to make the offer of proof. We have reviewed their testimony and conclude that the trial court did not err in excluding it under OCGA § 24-2-3. The statute prohibits the admission of the complaining witness’ past sexual behavior unless the court finds that that behavior “directly involved the participation of the accused or finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.” The testimony offered did not directly involve appellant, nor did it support an inference that the victim consented to the conduct of which she complained. Moreover, it did not prove what appellant alleged—that the prosecutrix had falsely accused others of rape. Appellant sought to have the evidence admitted to impeach the victim’s credibility, but that is not a proper reason for its admission. Johnson v. State, 146 Ga. App. 277 (1) (246 SE2d 363) (1978). OCGA § 24-2-3 “provides the exclusive means for admitting evidence relating to the past sexual behavior of the complaining witness in prosecutions for rape.” Johnson at 280. Since the proffered testimony did not fit within the exceptions that the statute provided and did not prove appellant’s contention, it was properly excluded.

Decided February 27, 1989

Rehearing denied March 10, 1989

David C. Jones, Jr., for appellant.

Timothy G. Madison, District Attorney, T. David Motes, Assistant District Attorney, for appellee.

3. Appellant also argues that the conviction for cruelty to children should have merged with the rape conviction in this case and that the trial court erred in sentencing him on both crimes. He bases his assertion on the fact that both charges stemmed from the same incident, and he claims that each element of cruelty to children is included within the definition of rape. OCGA § 16-5-70 (b) defines cruelty to children as “maliciously causing] a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-6-1 (a) defines rape as “carnal knowledge of a female forcibly and against her will.” In appellant’s case, the cruelty to the child as stated in the indictment was both the forced sex act and the threat to kill her if she told anyone. At trial, the testimony showed that appellant made such a threat after the alleged sex act and that because of the incident and the statement, the victim tried to commit suicide. Although she was unsuccessful, she became ill in the attempt. The evidence supporting the rape conviction was not the same evidence that supported the cruelty to children conviction, and so there was no merger of the crimes. Appellant’s enumeration has no merit.

4. We agree with appellant that the trial court erred in denying his motion for new trial on the motion for continuance issue as discussed in Division 1 of this opinion. However, the motion for new trial was properly denied with regard to the rape shield issue as discussed in Division 2.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    75931.
    SALCEDO v. THE STATE.
    (381 SE2d 444)
   Deen, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court in Salcedo v. State, 258 Ga. 870 (376 SE2d 360) (1989), our decision in Salcedo v. State, 188 Ga. App. 3 (372 SE2d 238) (1988), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Benharn and Beasley, JJ., concur.

Decided March 10, 1989.

James E. Malone, Dennis C. O’Brien, for appellant.

Robert E. Wilson, District Attorney, Nelly F. Withers, Eleni Ann Pryles, Assistant District Attorneys, for appellee.


author: Pope, Judge.

text:
    77291.
    TAYLOR v. THE STATE.
    (379 SE2d 814)
   Pope, Judge.

Appellant was convicted of armed robbery. He was sentenced to a term of twenty years, twelve to serve and eight on probation.

1. Appellant, represented on appeal by a new counsel who did not represent him at trial, argues that he did not receive effective assistance of counsel at trial. This is based on trial counsel’s decision not to ask for a continuance in order to compel a witness under subpoena to appear. The witness, Yvette (or Evette, both spellings appear in the record) Stewart, was appellant’s girl friend. Apparently, she would have testified that appellant spent the night with her the night of the crime. Through her testimony, appellant argues he could have buttressed his alibi. A review of the record shows that there is no merit to appellant’s argument.

The evidence at trial was sharply at odds. The victim testified that as he pulled into his driveway sometime between midnight and 1:00 a.m., appellant approached him while he was still in his car and asked for a light. As the victim reached for matches, appellant pulled a pistol and took the victim’s wallet, watch and car.

Appellant’s version differed. He admitted he had the victim’s car, but said that he had the car as a result of a deal with the victim. Appellant testified that the victim agreed to let him use the car for a couple of hours in return for appellant’s forgiveness of a debt the victim owed him. Appellant denied taking the wallet or watch. He also said he left the victim’s home earlier in the evening than midnight and eventually spent the night at Ms. Stewart’s.

The evidence also showed that appellant was arrested the day following the crime. An officer observed appellant drive through a red light in the victim’s car. When the officer tried to pull him over, appellant drove off into an apartment complex where he left the paved parking lot and drove the car down an embankment. When he could drive no further, he abandoned the car and fled on foot. He was caught shortly thereafter.

The defense proceeded originally on the theory of alibi. Before trial, counsel visited and interviewed Ms. Stewart and subpoenaed her to appear at trial. Rather than have her wait the whole time at court, he agreed to have her call in and come when she was needed. At the beginning of the defense case, counsel sounded for Ms. Stewart, but she was not there. He then proceeded by putting appellant on the stand as he had always intended, saying he could call Ms. Stewart later.

However, counsel was forced to change tactics during the State’s cross-examination of appellant. In explaining why he contended the victim owed him money, appellant testified that the debt was for drugs he had sold the victim and that he sold drugs sometimes to make extra money. Thus having placed his character squarely in issue, appellant was impeached by proof of five other crimes ranging from shoplifting to theft-by-taking to burglary. At a supplemental hearing following appellant’s motion for new trial raising the issue of trial counsel’s ineffectiveness, trial counsel testified that at that point he made a tactical decision not to seek a continuance to compel Ms. Stewart’s attendance. He further testified that he was not anticipating the drug testimony from his client.

“We therefore consider ‘whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Cits.]

“In order to prevail defendant must meet two tests: 1) he must show that trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the ‘counsel’ guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable.

“Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. [Cits.]” Hosch v. State, 185 Ga. App. 71, 72 (363 SE2d 258) (1987).

In light of appellant’s testimony and his previous record, trial counsel’s advocacy on behalf of his client was certainly enough to ensure the proper functioning of the adversarial process. The evidence at trial was sufficient to authorize the jury to believe the victim and to find appellant’s version of events totally incredible.

2. Appellant argues that the trial court erred in failing to charge on alibi. This is without merit. The evidence at trial did not establish the impossibility of appellant’s presence at the scene of the crime at the time of its commission. Adams v. State, 246 Ga. 119 (2) (269 SE2d 11) (1980); Brewton v. State, 174 Ga. App. 109 (1) (329 SE2d 270) (1985).

Decided March 10, 1989

Hurl R. Taylor, Jr., for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. Andrew Weathers, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77367.
    BAILEY v. THE STATE.
    (379 SE2d 816)
   Benham, Judge.

Viewing the evidence in a light most favorable to the verdict, the trial court, sitting without a jury, was authorized to find that on February 25, 1988, Clayton County police officer Jenny Massengale, wearing street clothes, had just left work in her civilian vehicle. As she proceeded in a northeasterly direction on Mt. Zion Boulevard, appellant, Michael Norman Bailey, raced up behind her in his vehicle, flashing his headlights and nearly rear-ending her. Appellant passed Officer Massengale’s vehicle and stopped; he then backed his vehicle toward her vehicle, stopping short of contact, before pulling his vehicle off the side of the road. Officer Massengale stopped, exited her vehicle, and shouted, “I am a police officer. Please step out of the vehicle.” Appellant departed in his vehicle, passing through a four-way stop sign. Massengale radioed for a marked vehicle to stop appellant. She then followed appellant to a Drexel Lane address where she once again informed him she was a police officer, showed him her badge, and requested him to furnish some identification. Ignoring Massengale’s request, appellant went into the house and refused to come out. After other officers arrived, repeated unsuccessful attempts were made to coax appellant to the door. Appellant’s car was impounded because the computer showed that the address of the tag application did not match the Drexel Lane address. Massengale swore out a warrant for obstruction of an officer, and appellant surrendered. In a bench trial, appellant was found guilty of obstruction of an officer, and this appeal follows.

Appellant contends that the evidence was insufficient to support a conviction of obstruction of an officer. The offense is defined in OCGA § 16-10-24 (a) as follows: “A person who knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” The evidence was sufficient to support a finding that appellant knew Officer Massengale was a law enforcement officer, since she identified herself and showed appellant her badge at his home. It also authorized a finding that Officer Massengale was in the lawful discharge of her duties since she personally observed appellant driving in a reckless manner. Duncan v. State, 163 Ga. App. 148 (1) (294 SE2d 365) (1982).

Decided March 10, 1989

John L. Watson, Jr., for appellant.

John C. Carbo III, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.

The only issue left for determination is whether appellant knowingly and wilfully obstructed or hindered Officer Massengale, who testified that she based her obstruction charge on appellant’s refusal at his home to provide her with identification. In Hudson v. State, 135 Ga. App. 739 (2) (218 SE2d 905) (1975), we held that a factfinder could find that refusal to provide identification to an officer could hinder the officer in the execution of the officer’s duties.

In the instant case, the only response appellant made after the officer identified herself for the second time and requested his identification was that he “was not impressed.” The trial court was authorized to find that appellant’s refusal to identify himself was not merely discourteous, it actually hindered and obstructed Officer Massengale in her investigation of the reckless driving and stop-sign violation. Therefore, applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find the evidence sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offense of obstruction of an officer.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77422.
    TREDNICK v. KRAMER et al.
    (379 SE2d 633)
   Benham, Judge.

The parties all own parcels of property that formerly made up one undivided piece of property. That single tract of property had a private road from the public road on the north side of the property to the house, and from the house to a county dirt road on the southern side of the property. The previous owner of the parcel of land now owned by appellant permitted a mobile home to be placed on his land approximately 100 feet from the former homestead and occupied by a caretaker/watchman. The mobile home occupant and his guests used the private road from the mobile home to the county dirt road for ingress and egress. In March 1986, appellant purchased the tract of land he now owns, and in September 1986, he built upon it a home and a driveway to the home from the public road on the north side. Appellee McArthur, the owner of the mobile home, then had it moved from appellant’s land to property adjoining that of appellant and owned by McArthur’s niece, appellee Kramer. The mobile home was left sitting on the private way on the Kramer side of the TrednickKramer property line. Appellant filed a petition to remove an obstruction from a private way (OCGA § 44-9-59) and requested that a temporary restraining order and an interlocutory injunction issue. The following day, a temporary restraining order was issued, enjoining and restraining appellees from allowing impediments to the use of the private way. Appellees filed an answer and counterclaim asking, among other things, that appellant be temporarily and permanently enjoined from crossing appellee Kramer’s land. After holding a hearing, the trial court issued a temporary injunction in March 1987, enjoining appellees from interfering with appellant’s use of the private way across appellee Kramer’s land until a jury trial was had on appellant’s prayer for a permanent injunction. In January 1988, appellees moved for partial summary judgment as to appellant’s complaint and the injunction they had previously sought in their counterclaim. The trial court granted the motion, prompting this appeal.

Appellant proceeded under OCGA §§ 44-9-54 and 44-9-59 in his efforts to have removed the obstructions to the private way. “The act . . . [OCGA §§ 44-9-54 and 59], giving the [probate court] jurisdiction summarily to try obstructions to private ways, is confined to cases of private ways which arise by prescriptive right acquired by seven years possession or user. Therefore the question here is: Did [appellant] have such right by prescription? [Cits.]” Clark v. Anderson, 52 Ga. App. 500, 501 (183 SE 852) (1935). “[I]t is fundamental that prescription is to be strictly construed. . . .” First Christian Church &c. v. Realty Investment Co., 180 Ga. 35, 39 (178 SE 303) (1934). “It is clear that a private way may not be acquired by prescription where use of the private way is with the owner’s permission until an adverse claim is made and actual notice is given to the owner or party in possession. [Cits.]” Greer v. Piedmont Realty Investments, 248 Ga. 821 (la) (286 SE2d 712) (1982).

In the case at bar, the trial court concluded that appellant had not met the seven-year use requirement inasmuch as he had been using the private way “for a little over two years and two months,” and that those who had used the private way prior to appellant had done so with the permission of the owner, appellee Kramer. It is uncontradicted that appellant purchased his property on March 25, 1986, two years, two months, and two weeks before the entry of the trial court’s order. It is also without dispute that in 1979 a chain was placed across the entry to the private way from the county dirt road when the property owners discovered abandoned cars and trash littering their property. A man with a mobile home was given permission to place his trailer on what is now appellant’s parcel in order to discourage people from dumping trash on the property. Appellee Kramer, the present owner of the private way, became co-owner of her property in 1984 and sole owner in March 1985. She testified that she had told her aunt, appellee Agnes McArthur, that the caretaker who occupied the mobile home and his guests had her permission to use the private way across her land in order to reach the mobile home from the county dirt road. Appellee Kramer testified further that Mrs. McArthur had “sort of overseen the property” and that she “relied on her very much” concerning care of the property. Mrs. McArthur testified that, with appellee Kramer’s permission, she permitted the two mobile home occupants/caretakers and their guests to use the private way over Mrs. Kramer’s property from 1979-1986.

Decided March 10, 1989.

Stein & Cauthen, Robert H. Cauthen, for appellant.

Smith & Floyd, Charles C. Smith, Jr., for appellees.

Inasmuch as the evidence was undisputed that appellant had used the private way for less than seven years and that the other users of the private way did so with the owner’s permission, appellant did not establish the existence of a private way, and the trial court did not err in granting summary judgment to appellees.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77621.
    FOSTER v. THE STATE.
    (379 SE2d 634)
   Pope, Judge.

Appellant was convicted on three counts of aggravated assault, two counts of aggravated sodomy, kidnapping and burglary. He was sentenced to two life terms, plus sixty years with the sentences to run consecutively.

The charges arose from two separate incidents involving different victims. At about 6:35 a.m. on January 19, 1987, the victim of the first incident, a woman, left her apartment to go to work. As she left she was attacked by a man who put a knife to her throat and forced her back to her apartment. The man spoke in a very calm manner. He told the woman to be quiet and that she would not get hurt; he also asked if anyone was in the apartment. The victim told him that her sister was asleep in her room. The man forced the woman into the other bedroom and asked her if she had a telephone. The victim had to turn on the light to find the telephone under the bed; she was then able to observe the man’s face. He had her undress and performed oral sex on her. He then forced her to perform oral sex on him. During this act, the victim’s sister knocked on her door. The man ran out of the room after the sister who fled toward her room. The man grabbed her arm, but she managed to pin his arm in the door. The victim watched as the man freed himself and ran from the apartment.

The second incident took place at the same apartment complex on April 21, 1987. At approximately 6:15 a.m., the victim opened her apartment door to let her cat out. She left her door open as she went back to her sofa to put on her shoes and to get her purse before leaving for work. A man came in and the victim tried to jump up and run, but the man put a shiny, silver object which the victim thought was a knife to her throat and forced her back onto the sofa. The victim screamed and the man told her in a calm voice to be quiet. She kept screaming and he again calmly told her to be quiet. When she continued screaming, the man became frightened and left.

Officer Lillard of the DeKalb County Police lived in the same apartment complex where the attacks occurred. He also worked for the complex as a security officer. When he learned of the description of the attacker provided by the second victim, he thought of appellant. When appellant realized he was the object of police scrutiny, he fled and was apprehended almost six months later in Virginia. Each of the victims positively identified appellant as the man who attacked her.

1. Appellant argues that the trial court erred in admitting evidence of a similar crime committed by appellant in Columbus, Ohio in 1977. The evidence regarding the Ohio crime showed that the victim was awakened in her apartment at approximately 5:45 a.m. by a man who had his hand over her mouth. He wore gloves and spoke very calmly and told her she would not be hurt if she cooperated. He held a weapon she thought was a pair of scissors. He then performed oral sex on her and then raped her. As he left, he told her to lie facing the wall for about five minutes to give him time to get back to his apartment; he also told her to make sure she locked her window next time. Appellant entered a plea to a lesser offense arising from this incident and served four years in prison.

“Evidence of other criminal acts of the defendant may be admitted if it is substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Purposes for which other crimes evidence may be offered include motive, intent, bent of mind, course of conduct, absence of mistake or accident (both are aspects of intent), plan or scheme, and identity. To render evidence of extrinsic offenses admissible for any of these purposes, the state must show that the defendant was the perpetrator of the extrinsic offenses, and that there is a sufficient similarity or connection between the extrinsic offense and the offense charged, such that the proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Rich v. State, 254 Ga. 11, 13 (325 SE2d 761) (1985). We find no error. The State established that appellant committed the Ohio crime. In each case, appellant struck in the early morning hours in the apartment complex in which he lived. In each case, the victim was easily accessible and vulnerable (in Ohio, through an unlocked window; here, first, a woman alone on her stairway; second, through the open door of an apartment). In each case, the victim was threatened with a knife-like weapon. In each case, the victim described the man as speaking very calmly and being very clean-cut. In two of the cases, the telephone was disabled. Sufficient similarities between the crimes existed to justify the admission of the Ohio crime. The fact that over nine years passed between the Ohio crime and the first Georgia crime does not render the evidence inadmissible. Rich, supra at 14.

2. Appellant argues it was error for the trial court to fail to declare a mistrial for admitting into evidence the fact that defendant had been charged with yet another crime unrelated to the sexual assault discussed in Division 1. The reference to the other crime arose during the testimony of the Ohio detective who investigated the sexual assault in that state. According to the detective, the victim of the assault was taken to a courtroom to view the defendant during a preliminary hearing. Counsel for appellant objected and asked for a mistrial, arguing that the testimony improperly established that defendant had been charged with an unrelated crime. The denial of a motion for mistrial lies within the discretion of the trial court and will not be overturned by an appellate court absent manifest abuse of that discretion. Oller v. State, 187 Ga. App. 818, 822 (371 SE2d 455) (1988). The record shows that, while counsel for appellant realized immediately that the witness was referring to a hearing for a crime other than that ruled admissible because of its similarity, neither the prosecutor nor trial judge realized the testimony referred to a separate criminal proceeding until that fact was brought out during a hearing outside the presence of the jury. Considering the totality of the circumstances, we see no harmful effect upon the jury.

3. We find no error in the trial court’s decision to admit the in-court identification of appellant by the second victim. See Pack v. State, 182 Ga. App. 618 (356 SE2d 557) (1987).

4. Appellant’s enumerations of error alleging insufficient evidence of aggravated assault and burglary arising from the second incident are without merit. The jury had sufficient evidence to infer that the weapon used against the second victim was a deadly weapon. Ander son v. State, 245 Ga. 619, 622 (1) (266 SE2d 221) (1980); Little v. State, 3 Ga. App. 441 (60 SE 113) (1907).

Decided March 10, 1989.

William C. Puckett, Jr., for appellant.

Robert E. Wilson, District Attorney, Barbara.B. Conroy, Robert E. Statham III, Assistant District Attorneys, for.-appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Carley, Chief Judge.

text:
    77755.
    MITCHAM v. REESE.
    (379 SE2d 637)
   Carley, Chief Judge.

Appellee-lessor instituted a dispossessory action, alleging appellant-lessee’s nonpayment of rent. Appellant answered and counterclaimed for damages allegedly caused by appellee’s failure to make requested repairs to the premises. Appellee subsequently filed a motion to compel appellant’s payment of rent into the registry of the court. See OCGA § 44-7-54 (a) (1) and (2). The trial court granted appellee’s motion and, when appellant thereafter failed to comply with the trial court’s order, a writ of immediate possession was issued. A jury trial resulted in a verdict in favor of appellee on her claim for unpaid rent and a verdict in favor of appellant on his counterclaim. Appellant appeals from the judgments entered on the jury’s verdicts.

1. At trial, appellant moved for a directed verdict as to the issue of appellee’s right of possession. The trial court’s denial of appellant’s motion is enumerated as error.

Appellee’s right of possession was not an issue at the jury trial. The trial court’s previous issuance of a writ of possession based upon appellant’s failure to comply with the order requiring the payment of rent into the registry of the court “precluded any further litigation over the issue of which party was entitled to possession.” Diplomat Restaurant v. Anthony, 180 Ga. App. 431 (1) (349 SE2d 284) (1986). The only issues remaining for jury trial were appellee’s claim for unpaid rent and appellant’s counterclaim for damages for failure to make repairs. Appellant enumerates no error with regard to these issues. Likewise, appellant enumerates no error with regard to the trial court’s issuance of an immediate writ of possession pursuant to OCGA § 44-7-54 (b). “Where the appellant tenant failed to pay into court the rent. . . , the court properly entered its order giving [appellee] immediate possession. [Cit.] Under the facts, any issue as to appellant’s right to possession of the premises has become moot.” Mitchell v. Excelsior Sales & Imports, 243 Ga. 813, 816 (2) (256 SE2d 785) (1979). The trial court did not err in denying appellant’s motion for a directed verdict.

Decided March 10, 1989.

Mark T. Sallee, for appellant.

Arrington & Horne, Stanley E. Foster, for appellee.

2. Appellant’s remaining enumerations of error have been considered and found to be without merit.

Judgments affirmed.

Sognier, J., concurs. Deen, P. J., concurs in judgment only.


text:
    77778.
    GRAVES v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    (379 SE2d 638)
   Benham, Judge.

This appeal is from a judgment for appellee in a suit by appellant to recover benefits under an automobile insurance policy. Appellee denied coverage on the ground that the policy was cancelled prior to the loss because of nonpayment of a premium. The trial court submitted the case to the jury on a special verdict form which required it first to determine facts which would govern the issue of whether there was coverage. Since the verdict established that there was no coverage, judgment was entered for appellee.

1. Appellant’s first three enumerations of error concern adverse rulings which appellant alleges the trial court made with regard to discovery matters. However, since appellant chose to have omitted from the record the allegedly erroneous orders, this court cannot decide their correctness. “The burden is on the appellant to show error by the record, and when a portion of the [record] . . . bearing upon the issues raised by the enumerations of error, is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. [Cits].” Morris v. Hodge, 152 Ga. App. 815, 816 (264 SE2d 482) (1979).

2. The trial court’s denial of appellant’s motion for summary judgment is enumerated as error, but since the case has been tried to verdict and judgment, it is too late to secure review of the denial of that motion. Atlanta Car for Hire Assn. v. Whited, 179 Ga. App. 893 (1) (348 SE2d 102) (1986).

3. The next three enumerations of error asserted by appellant contend the trial court erred in denying him a directed verdict on three issues. The standard of review for the denial of a motion for directed verdict is the “any evidence” standard. Little v. Little, 173 Ga. App. 116 (1) (325 SE2d 624) (1984).

A. Appellant moved for a directed verdict on the issue of whether appellee had validly cancelled appellant’s policy prior to the loss. The only ground asserted in support of the motion was that appellee had not properly notified lienholders as required by OCGA § 33-24-44. Since there was evidence that there were no lienholders at the time of the loss, application of the “any evidence” standard mandates the conclusion that there was no error in denying appellant’s motion for directed verdict on this issue.

B. Appellant also sought a directed verdict on the issue of appellee’s bad faith in refusing to pay. However, since there was a question of fact concerning whether appellant’s policy was still in effect, there was necessarily a question of fact concerning appellee’s good or bad faith in refusing to pay, so appellant was not entitled to a directed verdict on that issue.

C. One of appellant’s contentions in support of his claim that there was coverage was that he sent a premium payment to appellee in time to prevent cancellation of the policy. Contending that his testimony that he sent the payment was uncontradicted, appellant moved for a directed verdict on that issue. However, the evidence showed that the check was never paid by appellant’s bank, although every other check issued on that account, including a later check to appellee, was paid; and that appellant dealt with that check differently than he dealt with other checks he had sent to appellee before and after, including the unusual step of making a photocopy of the front of the check before mailing it. Under all the circumstances, we agree with the trial court that there was a question for the jury to decide concerning whether appellant sent payment to appellee in time to prevent cancellation of the policy. We find no error in the denial of appellant’s motion for directed verdict on that issue.

4. The trial court, on its own motion, decided to submit to the jury a special verdict form requiring it to resolve the issue of coverage vel non first by finding as matters of fact whether the cancellation was effective and whether appellant had paid the premium in time to prevent cancellation. Appellant asserts several errors with regard to that procedure.

A. The trial court’s action in requiring the special verdicts was specifically authorized by OCGA § 9-11-49 (a). Whether to use special or general verdicts is a matter within the discretion of the trial court (News Pub. Co. v. DeBerry, 171 Ga. App. 787, 790 (321 SE2d 112) (1984)), and given the substantial questions concerning coverage vel non, we find no abuse of that discretion here. Appellant offers no authority that the trial court cannot require the use of special verdicts on its own motion, and we are aware of none.

Decided March 10, 1989.

George P. Graves, pro se.

Johnny W. Panos, for appellant.

William E. Gray II, for appellee.

B. Since the only issues which were pertinent to the jury’s deliberation on the special verdict form were cancellation and payment of premium, we find no error in the trial court’s refusal to send out with the jury evidence of Appellant’s contract with his attorney, which was not relevant to those issues, or in the refusal to charge on other issues which would become pertinent only in the event of a plaintiff’s verdict.

5. Finally, appellant asserts in his last enumeration of error that the judgment was not supported by the evidence. Assuming that he meant that the verdict was not supported by the evidence, we disagree: as noted above, the evidence was sufficient to send to the jury the questions of cancellation and payment. Appellant’s argument on this enumeration of error, however, focuses on the trial court’s use of the word “dismissed” in its judgment. A judgment should be construed so as to uphold it if possible (First Nat. Bank &c. v. Millender, 149 Ga. App. 65 (1) (253 SE2d 417) (1979)), and it is abundantly clear in this case that the judgment is an adjudication on the merits against appellant.

6. Appellee’s motion for a frivolous appeal penalty is denied.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77786.
    FINLEY v. BERMAN.
    (379 SE2d 640)
   Benham, Judge.

The issue to be decided in this appeal is whether appellee Robert Berman is entitled to summary judgment on the issue of his liability under the Family Purpose Doctrine for the alleged negligence of his daughter Cindy Berman in the operation of an automobile. The trial court held that he was so entitled, citing the fact that his daughter had become emancipated prior to the events which formed the basis of the suit.

We agree with appellee that emancipation is not itself sufficient to absolve a parent of liability under the doctrine. Dunn v. Caylor, 218 Ga. 256 (la) (127 SE2d 367) (1962). We do not agree, however, that the record of this case demonstrates the existence of factors which would permit the imposition of vicarious liability on Mr. Berman.

In Murch v. Brown, 166 Ga. App. 538 (304 SE2d 750) (1983), this court held that there are four factors which must be present before the doctrine is applied: 1) the defendant must own or have an ownership interest in the automobile; 2) the defendant must have made the automobile available for family use; 3) the driver must be a member of the defendant’s immediate household; and 4) the automobile must have been driven at the time with the permission or acquiescence of the defendant. Those factors, however, are not determinative; the right to exercise authority and control is. “ . . . Georgia courts have used authority and control as the ‘principal factor’ in determining whether liability accrues under the doctrine. [Cits.] The four conditions prescribe the parameters of the family purpose doctrine. . . . [Cit.] The doctrine is then applied to render the defendant vicariously liable if he had the right to exercise such authority and control that it may be concluded that an agency relationship existed between him and the family member with respect to the use of the vehicle. In other words, the four conditions prescribe when the test is to be applied, but the actual test is authority and control. [Cits.]” Id. at 539.

In the present case, there is no question that Mr. Berman had an ownership interest in the car his daughter drove; he paid for most of it and his name was on the title as an owner. There is also no question that while Cindy was living at home the car was provided for her use as a member of the family and was driven with Mr. Berman’s permission. However, the uncontradicted evidence shows that Cindy had moved out of the family home three weeks before the collision giving rise to this action and was living in another town. Although appellant has argued that Cindy was still a member of the Berman household because she had not established a permanent residence elsewhere, the record shows that she no longer lived with her parents. At the time of the collision, her residence was a motel because the apartment into which she was preparing to move was not yet available. She was, however, living on her own and employed. That evidence establishes that she was not a member of the Berman household.

Although the fact that Cindy was no longer a member of the household would be sufficient to support judgment for Mr. Berman, he would have been entitled to summary judgment even if there were a question of fact on that issue, because the evidence shows beyond question that Mr. Berman did not have authority over and control of the car. The depositions of the Bermans established that Cindy came and went and used the car as she pleased and that Mr. Berman had no right to specify when, how, or for what purpose she used it. Compare Tolbert v. Murrell, 253 Ga. 566 (2) (322 SE2d 487) (1984), relied upon by appellant, where the parent admitted that she had deprived her son of use of the car on at least one occasion as an incentive to perform better in school. The fact that the car was listed on Mr. Berman’s insurance policy does not require a different result. Calhoun v. Eaves, 114 Ga. App. 756, 760 (152 SE2d 805) (1966). Since the uncontradicted evidence shows that Cindy’s use of the car was not under Mr. Berman’s authority or control, the trial court was correct in granting his motion for summary judgment.

Decided March 10, 1989.

McClure, Ramsay & Dickerson, John A. Dickerson, David L. Hudgins, for appellant.

Jack M. Carey, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77882.
    BROWN v. THE STATE.
    (379 SE2d 642)
   Carley, Chief Judge.

Appellant was tried before a jury and convicted of armed robbery, burglary, and impersonating a police officer. He 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 for a directed verdict of acquittal.

The evidence, when construed most strongly in support of the guilty verdicts, shows the following: In December of 1984, someone knocked on the door of the victim’s home and identified himself as a policeman. When the victim opened her door, two men rushed in and knocked her glasses off. One of the men held a gun on the victim and went through her wallet. According to the victim, the man removed everything from her wallet, including the check cashing identification card that had been issued to her by her grocery. While the victim was being held at gunpoint and her wallet was being rifled, the other man went through her house removing property. A thumbprint was discovered on the victim’s grocery check cashing identification card. This thumbprint led to appellant’s arrest. Although the victim was unable to identify appellant, an expert witness for the State testified that the thumbprint was appellant’s. Appellant testified that he may have touched the victim’s identification card when he worked at the grocery store as a bag boy during the month of November 1984. However, the manager of the grocery store testified that appellant had never worked there, that there were no payroll records for appellant, and that a bag boy would have no reason to handle a customer’s identification card.

Decided March 10, 1989.

Cail & Cail, Kenneth H. Cail, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Lars T. Granade, Assistant District Attorney, for appellee.

On this evidence, appellant urges that the State failed to meet its burden of proving beyond a reasonable doubt that he was one of the two perpetrators. He relies upon the principle that, “[t]o warrant a conviction based solely on fingerprint evidence, the fingerprints corresponding to those of the defendant must have been found in the place where the crime was committed, and under such circumstances that they could only have been impressed at the time when the crime was committed. [Cits.]” Barnett v. State, 153 Ga. App. 430, 431 (1) (265 SE2d 348) (1980). Although appellant may have offered an exculpatory explanation as to how his thumbprint came to be on the victim’s identification card, the State presented evidence that appellant’s explanation was a mere fabrication. Under these circumstances, the determination of whether the evidence was “sufficient to exclude every reasonable hypothesis save that the fingerprints were impressed at the time the crime was committed [was] a question for the jury. [Cit.]” Glover v. State, 175 Ga. App. 285, 287 (333 SE2d 165) (1985). It follows that the trial court correctly denied appellant’s motion for a directed verdict of acquittal.

2. Appellant enumerates as error the trial court’s refusal to provide the defense with funds to hire a fingerprint expert.

Assuming without deciding that fingerprint evidence is “highly unusual in nature” and not mere “routine scientific” evidence (see Thornton v. State, 255 Ga. 434, 435 (4) (339 SE2d 240) (1986)), appellant’s “ ‘motion, considered in the light of the record before [the trial court] when [it] made [its] dispositive ruling, failed to create a reasonable probability that expert assistance was necessary to the defense and that without such assistance [appellant’s] trial would be rendered unfair. We accordingly hold that the trial court did not err in denying [appellant’s] motion.’ ” Roseboro v. State, 258 Ga. 39, 41 (3 e), fn. 3 (365 SE2d 115) (1988).

Judgments affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    A89A0043.
    WATSON v. THE STATE.
    (379 SE2d 817)
   Sognier, Judge.

Willie Watson was convicted of possession of cocaine, and he appeals.

Construing the evidence to support the verdict, the record reveals that Officer B. Martin of the Atlanta Police Department observed a new red Mercury Topaz automobile with a dealer drive-out tag pull up at a gasoline station. The fact that the vehicle had a drive-out tag rather than a metal license tag aroused his suspicion, because the police “had been having a lot of cars with dealer drive-out tags that came back to be stolen,” and he approached the car and asked the driver for his driver’s license. The driver, Gene Jewell, stated he did not have one. Officer Martin testified that at that point he noticed the passenger, later identified as appellant, start fumbling, as though he were concealing something beside the passenger seat. Officer J. Goines of the Atlanta Police Department, who had driven up while Officer Martin was talking to the driver, also noticed appellant appear to put something under the seat of the car. Officer Martin called to Officer Goines to watch the passenger, and Goines got out of his car and opened the passenger door of the Topaz. When the door was opened, a small plastic bag, containing rice and several cellophane wrapped packets of white powder, later identified as cocaine, was in plain view. The two officers arrested appellant and Jewell and performed an inventory search of the car, where another bag of cocaine was found. Jewell entered guilty pleas to possession of cocaine and possession of less than an ounce of marijuana, which was found on his person.

Appellant contends the trial court erred by denying his motion to suppress evidence seized in the search of the vehicle because the police had no valid reason to stop the car. Appellant argues that neither he nor Jewell was doing anything illegal or suspicious when stopped, and the fact that the vehicle bore a dealer drive-out tag was insufficient to create the articulable suspicion necessary to authorize even a brief stop under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). We do not agree. “ ‘On appeal of the denial of a motion to suppress!,) the evidence is to be construed most favorably to the upholding of the findings and judgment made.’ [Cits.] The trial court’s findings must be adopted unless determined to be clearly erroneous. [Cits.] The facts in this case do not dictate a departure from this general rule.” Dennis v. State, 166 Ga. App. 715, 716-717 (305 SE2d 443) (1983).

In this case the police had specific knowledge that many cars with drive-out tags turned out to have been stolen, and thus the suspicion engendered by the drive-out tag was more than an “unparticularized suspicion or ‘hunch.’ ” Terry, supra at 27. It was an “objective manifestation that the personfs] stopped [may be] . . . engaged in criminal activity. [Cits.]” United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981). Accordingly, we find that Officer Martin was authorized to make a brief investigative stop of the car. See Evans v. State, 183 Ga. App. 436, 437-439 (2) (359 SE2d 174) (1987).

Decided March 10, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Michael D. Thorpe, Assistant District Attorneys, for appellee.

Once the car had been stopped, both Officer Martin and Officer Goines observed appellant reach down beneath or to the side of the passenger seat. Officer Goines testified that he did not know if a weapon was being concealed. Reasonably prudent police officers in those circumstances would have been warranted in believing that a weapon might have been concealed, thus placing their safety in danger. Michigan v. Long, 463 U. S. 1032, 1048-1051 (103 SC 3469, 77 LE2d 1201) (1983); see Newby v. State, 178 Ga. App. 891, 892 (2) (345 SE2d 102) (1986). To protect themselves, therefore, the officers were justified in opening the passenger door to see exactly what appellant had been attempting to hide. One plastic bag containing cocaine was in plain view once the door was opened, and it was therefore admissible in evidence. Dennis, supra at 717.

Upon the discovery of contraband, the officers were justified in arresting appellant and Jewell pursuant to OCGA § 17-4-20 (a), and in searching the car incident to the arrest pursuant to OCGA § 17-5-1, during which search the other bag of cocaine was discovered. Accordingly, the second bag of cocaine was admissible into evidence and the trial court’s denial of appellant’s motion to suppress was proper. See Newby, supra at 892 (2).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0096.
    JOHNSON v. THE STATE.
    (380 SE2d 81)
   Sognier, Judge.

Adrian Johnson was convicted on one count of burglary, four counts of armed robbery, one count of possession of a firearm during an attempt to commit armed robbery, and one count of criminal attempt to commit armed robbery, and he appeals.

1. Appellant contends the State failed to prove that the armed robbery charge in Count 2 occurred on the date alleged in the indictment. Admitted into evidence at trial was appellant’s statement to the police that he entered the Circle K Store (the site of the armed robbery in Count 2) at 11:45 p.m. on December 7 and committed the robbery. Although appellant asserts a conflict in the evidence exists because the store cashier testified that the armed robbery took place after midnight in the early hours of December 8, and that he was working his Friday-Saturday shift when it occurred (the date in the indictment having been a Monday), viewing the evidence in the light most favorable to the State, we conclude that the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that the armed robbery charge in Count 2 was committed by appellant on December 7, 1987 as alleged in the indictment under the standards set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 10, 1989.

Morris & Webster, Lee W. Fitzpatrick, for appellant.

David E. Perry, District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

2. Although the victims of the burglary, armed robberies, and attempted armed robbery were not able to identify appellant because the perpetrators of the crimes were wearing masks, we find appellant’s statement given the police and submitted to the jury that he committed all the crimes except that alleged in Count 1 together with testimony by appellant’s co-indictees regarding appellant’s participation in the crimes to constitute sufficient evidence to identify appellant as the perpetrator of the crimes in Counts 2, 3, 4, 5, and 7. Although appellant made no statement to the police regarding the burglary charge in Count 1, appellant’s co-indictee, Jeffery Bryant, testified that he and appellant broke into the small shop and stole a shotgun, which was identified by the victim as the shotgun taken in the burglary and which other testimony established was used by appellant in the subsequent armed robberies. Bryant’s testimony was corroborated by evidence of appellant’s recent possession of goods stolen in that burglary, see Inman v. State, 182 Ga. App. 209 (355 SE2d 119) (1987), which constituted evidence tending to prove appellant’s identity and participation in the crime charged. Id.; see generally Thompson v. State, 186 Ga. App. 421, 422 (1) (367 SE2d 586) (1988). Since the evidence identifying appellant as the perpetrator of the crimes was ample to enable the jury to find beyond a reasonable doubt that appellant committed the crimes as charged, appellant’s second enumeration presents no error requiring reversal.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A89A0175.
    MOSES v. THE STATE.
    (379 SE2d 819)
   Banke, Presiding Judge.

Defendant Moses brings this appeal from his convictions of possession of cocaine, possession of less than an ounce of marijuana, and driving under the influence of alcohol. Held:

1. The evidence was amply sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of each of the three offenses of which he was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court did not err in allowing the state to introduce evidence that the defendant had refused to consent to a blood-alcohol test following his arrest. See OCGA § 40-6-393 (c); Wyatt v. State, 179 Ga. App. 327, 328 (346 SE2d 387) (1986). The state was not required to establish its compliance with the statutory procedures which must be followed in order to effect a suspension of a driver’s license based on such a refusal, inasmuch as the validity of the defendant’s driver’s license or any suspension thereof was not relevant to any issue in the case. See generally OCGA § 40-5-55 (c). Compare Sumner v. State, 184 Ga. App. 374 (361 SE2d 536) (1987) (where the defendant was being prosecuted for driving with a suspended license).

3. The trial court did err, however, in allowing the state to introduce evidence that the defendant had been convicted, some three years previously, of the offense of possession of marijuana with intent to distribute. The state does not contend that the defendant made an election to place his character in issue, so as to render such evidence admissible pursuant to OCGA § 24-9-20 (b). See Jones v. State, 257 Ga. 753, 758 (363 SE2d 529) (1988). Rather, it is asserted that the prior conviction was admissible to impeach the defendant’s testimony, elicited both on direct and on cross-examination, that he did not smoke marijuana.

In Mitchell v. State, 158 Ga. App. 628, 630 (281 SE2d 260) (1981), this court held that testimony on the part of a defendant that he did not “fool with” marijuana “could be construed as a denial that he had ever been involved in any offenses involving marijuana,” so as to render admissible for impeachment purposes evidence that he had previously been convicted on a marijuana possession charge. However, unlike the defendant in Mitchell, the defendant in the present case clarified his denial that he smoked marijuana by explaining, before any evidence regarding his past conviction was introduced, that he had used marijuana in the past but had stopped. In the context of this clarification, the defendant’s earlier testimony could not reasonably be construed as a denial that he had ever used marijuana in the past or that he had ever committed any offense involving the drug. We consequently hold that the prior conviction was not admissible for impeachment over his objection.

Decided March 10, 1989.

Willie Moses, pro se.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Joseph J. Drolet, William L. Hawthorne III, Assistant District Attorneys, for appellee.

4. The defendant’s remaining enumeration of error, concerning the trial court’s failure to give limiting instructions regarding the evidence of the prior conviction, is rendered moot by the foregoing.

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A0218.
    HOUT v. THE STATE.
    (380 SE2d 330)
   Deen, Presiding Judge.

The appellant, Jackie Hout, was charged with selling marijuana and possessing marijuana with intent to distribute in violation of the Georgia Controlled Substances Act, but was convicted only for selling the contraband.

The evidence showed that Hout resided with several others in a house that, as described by another resident, was a neighborhood “7-11” for drugs. An undercover officer with the Cobb County Police Department purchased marijuana from one of the residents on or about August 19, 1987, although the officer was not allowed to enter the house at the time. On August 21, 1987, after obtaining a warrant to search the premises, the undercover officer returned to make another purchase. This time he entered the house and gave the purchase money to Hout, who counted the money while another resident, Jessie Cofield, fetched two pounds of marijuana from a closet that was referred to as “the office.” At that point other police officers, who were listening to the transaction via a transmitter worn by the undercover agent, entered the premises and arrested Hout and Cofield. Over two more pounds of marijuana were found in the closet during the ensuing search of the house. No contraband or drug paraphernalia was found in Hout’s bedroom.

At trial, Cofield testified that he owned the marijuana stored in the closet, and that Hout sold it for him on a commission basis. Hout, however, denied any knowledge of or participation in Cofield’s drug business. He explained that he had taken the agent’s money because one of the other residents had told him someone was going to stop and leave some money owed to the other resident. Held:

1. Hout contends that the trial court erred in denying his motion to suppress the evidence seized during the search of the premises, because the search warrant was a legally defective, general warrant since it did not describe the persons to be searched. However, “[e]ven a ‘John Doe’ warrant is legally sufficient ‘for a search of described premises.’ Fowler v. State, 128 Ga. App. 501 (197 SE2d 502), U. S. cert. den. 414 U. S. 1000.” Giles v. State, 149 Ga. App. 263, 265 (254 SE2d 154) (1979). “Here, as in Fowler v. State . . . , ‘the incriminating evidence was found as a result of the search of the premises described in the warrant as opposed to the person. The description of the premises was sufficient for it particularly gave an exact location. Thus the warrant was not a general warrant as it related to the premises searched.’ ” Mitchell v. State, 150 Ga. App. 44, 45 (256 SE2d 652) (1979).

We also reject Hout’s contention that the warrant was invalid because it did not specify any subunits to be searched. The undercover officer did know that multiple individuals resided in the house, but he was uninformed as to the specific arrangement between the residents. There were no external indications that the house was anything other than a single dwelling, and given the circumstances of such an investigation it would have been unrealistic for the undercover agent to have attempted to ascertain whether any subleases or “boarding-house” arrangement existed. See Bing v. State, 178 Ga. App. 288 (342 SE2d 762) (1986); Jackson v. State, 129 Ga. App. 901 (201 SE2d 816) (1973).

Lastly, Hout contends that the search warrant was invalid because the probable cause for the no-knock provision in the warrant was supplied by the unrecorded, oral testimony of the affiant officer. The officer testified that in seeking the search warrant he had informed the magistrate that several people possibly would be in the house at the time of the search and some firearms would likely be present. If giving notice of authority and presence would increase the peril of the officers conducting the search, a no-knock provision is authorized, and such was the case here. OCGA § 17-5-27; generally Anderson v. State, 249 Ga. 132 (5) (287 SE2d 195) (1982). Although the desirability of such a practice has often been expressed, there is “no requirement in the law of Georgia that requires rather than suggests that a magistrate court warrant hearing be recorded.” Callahan v. State, 179 Ga. App. 556, 561 (347 SE2d 269) (1986).

2. Hout’s contention that the trial court erred in refusing to charge the jury on equal access need not be considered, since that legal theory was pertinent, if at all, only to the charge for possessing marijuana with intent to distribute, and Hout was acquitted of that charge.

Decided March 10, 1989.

Daniel L. Henderson, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

3. The trial court instructed the jury that “[t]he jury will retire for the purposes of electing a foreperson, and upon receipt of the papers, you may then begin to deliberate together until all twelve of you reach a unanimous verdict.” Hout waived his present objection to this charge by failing to raise it when specifically asked by the trial court if there were any objections to the jury charge. Rivers v. State, 250 Ga. 303 (7) (298 SE2d 1) (1982).

4. The record contains a handwritten request from the jury to rehear part of the testimony, but the transcript is silent as to any response by the trial court, the state, or the appellant. Hout contends that this omission abridged his statutory right to appeal and his due process rights. However, “[w]here the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed at the trial court under the provisions of OCGA § 5-6-41 (f) . . . When this is not done, there is nothing for the appellate court to review. [Cit.]” Howe v. State, 250 Ga. 811, 814 (301 SE2d 280) (1983).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0280.
    SMITH v. THE STATE.
    (379 SE2d 643)
   Deen, Presiding Judge.

Byron Edward Smith, Jr., appeals from his convictions of trafficking in cocaine, criminal use of an article with an altered identification, possession of less than an ounce of marijuana, and theft by receiving stolen property, contending that his written confession was made in violation of OCGA § 24-3-50 and should not have been admitted into evidence at his trial. Held:

The evidence showed that appellant’s mother, Gloria Glass, was a codefendant in the case. Glass’ attorney testified that he received information from his client’s boyfriend that drugs and contraband found in her home belonged to Smith. He asked the young man to make a statement to that effect because he felt that it would be helpful in obtaining a bail bond for Glass. Smith claims that he made the statement to secure his mother’s release from jail because he was concerned that there was no one to care for her other four children. At the motion to suppress hearing, Glass’ attorney claims that Smith contacted him, admitted that the drugs were his and that he would claim them. The attorney advised him that his statement would likely be used against him. Other evidence showed that when the police officers executed a search warrant at Glass’ home, she directed them to the hidden drugs and claimed that they belonged to her husband. There was also testimony that Smith did not live at his mother’s residence.

Decided March 10, 1989.

Penny A. Penn, for appellant.

Lewis R. Slaton, District Attorney, Carole E. Wall, Joseph J. Drolet, Assistant District Attorneys, for appellee.

“Statements made to parties [who] are not law enforcement officers or agents of the state do not require Miranda warnings. [Cit.] Nor does such an interview trigger an accused’s right to counsel under the Constitution of the United States or the Constitution of the State of Georgia. ‘(F)ar from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable.’ [Cit.]” Berryhill v. State, 249 Ga. 442, 450 (291 SE2d 685) (1982). See also Bethea v. State, 251 Ga. 328 (304 SE2d 713) (1983). We find that appellant’s claim that he was coerced into making a statement contains no merit and that the trial court did not err in overruling his motion to suppress it and to permit it to be admitted into evidence.

Judgment affirmed.

Birdsong and Benham, JJ., concur.