text:
    A93A2276.
    McFARREN v. THE STATE.
    (437 SE2d 869)
   Blackburn, Judge.

On January 4, 1993, the appellant, Benjamin Andrew McFarren, was given a uniform traffic citation for loitering or prowling, in violation of OCGA § 16-11-36. A formal accusation was subsequently issued charging him with the offense on February 2, 1993. Following a trial by jury, he was found guilty and sentenced to 12 months in jail. His motion for new trial was subsequently denied by the trial court on May 7, 1993, and this appeal followed.

At trial, the state’s evidence showed that, on the evening of January 4, 1993, between 10:30 p.m. and 11:00 p.m., McFarren was seen by a resident standing in the front yard of a home in a Clayton County subdivision peering into a window of the home. McFarren was standing approximately eight feet from the window. McFarren subsequently crossed the street and entered the yard of another home and looked through a window. Although McFarren had been working with a builder in the subdivision in the construction of new homes in the area, he admitted that at that time of the evening, he had completed his work for the day. The local police were summoned, and McFarren was apprehended on a street in the immediate vicinity as an individual fitting the description given of the prowler.

In an effort to explain his presence, McFarren informed the police that he was in the area for the purpose of obtaining a saw that he had left there earlier. However, the saw was not found in McFarren’s possession. McFarren was identified by the resident as the prowler, and given a citation for his conduct. He was not placed under arrest.

Over McFarren’s objection, evidence of a similar occurrence was admitted. This evidence showed that on October 12, 1992, three months earlier, McFarren’s truck was seen by the resident and his wife in the front of a partially constructed vacant home in the subdivision at approximately 9:00 in the evening. Approximately three- and-one-half hours later, McFarren was seen looking into the residents’ window while standing in the residents’ front yard. McFarren was later apprehended on that date in the partially constructed home. He indicated that he had been looking for keys to his motorcycle.

In addition to other witnesses presented by the defense, McFarren testified and denied that he had been standing in any of the yards of the neighborhood. He stated that he only walked down the streets of the neighborhood after he began having mechanical problems with his truck. However, the truck started without difficulty in the presence of the police officers.

1. In his first enumeration of error, McFarren maintains that the evidence was insufficient to support the verdict. Specifically, he maintains that the evidence was circumstantial in nature and did not exclude every reasonable hypothesis except that of his guilt. We disagree.

OCGA § 16-11-36 (a) provides that “[a] person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” Contrary to Mc-Farren’s contentions, the state presented direct testimony that Mc-Farren was seen peering into the windows of neighborhood homes at 11:00 p.m. McFarren offered an explanation of his presence at such an unusual hour, which the jury was authorized to reject.

In his third enumeration, McFarren challenges the resident’s identification of him as the prowler. “Although [McFarren] contends [the resident’s] identification of him was not credible, the question of a witness’s credibility is for the jury to decide. [Cit.]” Evans v. State, 207 Ga. App. 358, 359 (427 SE2d 837) (1993). “[T]his court does not reweigh the evidence but only determines its legal sufficiency. [Cits.]” Holcomb v. State, 198 Ga. App. 547 (1) (402 SE2d 520) (1991). Under the circumstances, we must conclude that the evidence was sufficient to enable any rational trier of fact to find McFarren guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Pinkston v. State, 189 Ga. App. 851 (377 SE2d 864) (1989). Accordingly, enumerations of error 1 and 3 are without merit.

2. Next, McFarren challenges the trial court’s admission of evidence of the similar occurrence of October 12, 1992, inasmuch as the incident did not result in a police report or an arrest. However, contrary to McFarren’s contentions, “[i]n order for a similar transaction to be admissible, it is not required that the transaction resulted in a conviction.” (Citations and punctuation omitted.) Sartin v. State, 203 Ga. App. 293, 296 (3b) (416 SE2d 572) (1992).

We further reject McFarren’s contention that the trial court erred in admitting the evidence of this prior occurrence when the state failed to comply with the ten-day notice requirement of Uniform Superior Court Rule 31.1. “Although Rule 31.1 requires the notice to be filed at least 10 days before the trial, it authorizes the exercise of a trial court’s discretion by providing that the trial court may shorten or lengthen the time for compliance with the rule. [Cit.]” Thaxton v. State, 260 Ga. 141, 144 (6) (390 SE2d 841) (1990); Willis v. State, 202 Ga. App. 447, 449 (2) (414 SE2d 681) (1992). In Thaxton, our Supreme Court held that the trial court did not abuse its discretion in finding that the five days’ notice provided to the defendant therein was sufficient. Likewise, in Willis, we found that the trial court did not abuse its discretion in holding that six days’ notice was sufficient. See also Thompson v. State, 186 Ga. App. 421 (2) (367 SE2d 586) (1988) (where the trial court did not abuse its discretion in finding that four days’ written notice was sufficient).

In the case sub judice, the trial court shortened the time frame for notice pursuant to USCR 31.1 and we find no abuse of discretion in the trial court’s action.

3. In his motion for new trial, McFarren raised the issue of juror misconduct. In support of this motion, McFarren filed the affidavit of McFarren’s employer, the builder of the subdivision from whom the juror had recently purchased a home, discussing a telephone call made by the juror concerning McFarren after the jury had been sworn and impanelled but before the presentation of any evidence. The trial court’s failure to grant a new trial based upon the conduct of this juror has been enumerated as an error.

In Cunningham v. State, 196 Ga. App. 68 (3) (395 SE2d 330) (1990), we held that a trial court did not abuse its discretion in denying a motion for new trial where a juror engaged in a telephone communication with someone not impanelled on the jury in a discussion of a matter irrelevant to the case. Although the juror in the case sub judice asked the builder if McFarren was one of his employees in an effort to determine if she knew McFarren, and the builder was uncertain as to whether or not he employed McFarren, the juror did not discuss any particular aspect of the case with him.

Decided November 15, 1993.

Robert H. Sutiles, for appellant.

Keith C. Martin, Solicitor, for appellee.

The juror informed the court that she thought that she was acquainted with McFarren but did not think that her acquaintance with him would impair her ability to judge the case on his guilt or innocence. The trial court asked counsel for the parties if either wanted to move for a mistrial based upon the juror’s testimony. McFarren declined to move for a mistrial and did not see a problem with the juror, while the state did move for a mistrial, which motion was denied. Mc-Farren accepted the juror with knowledge of her possible acquaintance with him and has waived his right to challenge any alleged disqualification of the juror at this time. Brown v. Holland, 228 Ga. 628 (2) (187 SE2d 246) (1972); Harris v. State, 198 Ga. App. 503 (402 SE2d 62) (1991). In addition, the juror testified at the hearing on the motion for new trial that her telephone conversation did not affect her opinion on the evidence or the verdict, and accordingly, no prejudice has been shown. Brown, supra. The trial court’s denial of defendant’s motion for new trial did not constitute error.

4. Lastly, McFarren maintains that the trial court erred in its order of June 9, 1993, as subsequently amended on June 24, 1993, in setting a supersedeas bond in the amount of $20,000. However, this court is without jurisdiction to entertain this issue. Under OCGA § 5-6-37, “[t]he proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” (Citations and punctuation omitted.) Westmoreland v. State, 192 Ga. App. 173, 175 (384 SE2d 249) (1989). McFarren’s June 4, 1993, notice of appeal flows from the judgment entered on the jury’s April 21, 1993, verdict and the trial court’s May 7, 1993, denial of his motion for new trial. The notice of appeal does not extend to appeal the trial court’s orders issued after the date of the notice. Accordingly, this issue is not properly before this court. Id.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Andrews, Judge. Pope, Chief Judge,

license: Public Domain

text:
    A93A0909.
    HOSPITAL AUTHORITY OF CLARKE COUNTY v. MARTIN et al.
    (438 SE2d 103)
   Andrews, Judge.

We granted the Hospital Authority of Clarke County’s application to file this interlocutory appeal from the order of the trial court denying its motion for partial summary judgment in a medical malpractice action brought by Martin and others. In the order appealed from, the trial court found that the Hosptial Authority had waived sovereign immunity to the extent it was covered by insurance, and that the Hospital Authority was also subject to punitive damages to the extent it had insurance for such damages.

The issue is whether punitive damages may be awarded against the Hospital Authority. Sovereign immunity is not at issue. It is undisputed that the present cause of action accrued prior to the January 1, 1991 amendment to the 1983 Georgia Constitution deleting provisions waiving sovereign immunity to the extent of insurance coverage, and that this action is controlled by the pre-1991 constitutional provisions. See Ga. L. 1990, p. 2435, § 1. It is also undisputed that the Hosptial Authority carried insurance creating a waiver of sovereign immunity under the pre-1991 provisions of the Georgia Constitution, Art. I, Sec. II, Par. IX. See Curtis v. Bd. of Regents of the Univ. System of Ga., 262 Ga. 226 (416 SE2d 510) (1992); Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992).

The Hospital Authority is a public funded governmental entity created pursuant to the Hospital Authorities Act (OCGA § 31-7-70 et seq.). Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39 (273 SE2d 841) (1981); Colquitt County Hosp. Auth. v. Health Star, 262 Ga. 285 (417 SE2d 147) (1992); Macon-Bibb County Hosp. Auth. v. Madison, 204 Ga. App. 741, 742 (420 SE2d 586) (1992); Hosp. Auth. of Fulton County v. Litterilla, 199 Ga. App. 345 (404 SE2d 796) (1991), rev’d on other grounds, Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34, supra. Although an award of punitive damages against a hospital authority was sustained in Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759 (386 SE2d 120) (1989), vacated, _U. S._(111 SC 1298, 113 LE2d 234) (1991), the Georgia Supreme Court noted in its opinion that “[n]one of the parties before us raised the question whether punitive damages are appropriately awarded against a public authority and we express no opinion on this issue.” Id. at 759, n. 1. Subsequently, in MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991), the Supreme Court ruled that MARTA was not subject to an award of punitive damages because such an award against a governmental entity would violate Georgia public policy. Quoting U. S. Supreme Court discussion of this issue in City of Newport v. Fact Concerts, 453 U. S. 247 (101 SC 2748, 69 LE2d 616) (1981), the Court reasoned that an award of punitive damages against a governmental entity “would burden the very taxpayers and citizens for whose benefit the wrongdoer was being chastised . . . [;] likely [be] accompanied by an increase in taxes or a reduction of public services for the citizens footing the bill . . . [and would levy punishment, not against the government official who knowingly or maliciously committed the wrong, but against a governmental entity which] can have no malice independent of the malice of its officials. Damages awarded for punitive purposes, therefore, are not sensibly assessed against the governmental entity itself.” (Emphasis in original; citations and punctuation omitted.) MARTA, supra at 428. After MARTA v. Boswell was decided, the case of Hosp. Auth. of Gwinnett County v. Jones made its second appearance before the Supreme Court. Id. at 261 Ga. 613. The Court again noted that the appropriateness of the punitive damages award against the hospital authority was not raised as an issue, and followed this comment with a reference to its recent decision in MARTA v. Boswell. Jones, supra, 261 Ga. at 613-614, n. 1.

We conclude that MARTA v. Boswell, supra controls this issue and establishes that it is against Georgia public policy to allow an award of punitive damages against a hospital authority created as a government entity under the Hospital Authorities Act (OCGA § 31-7-70 et seq.). There is no merit in the argument that punitive damages should, nevertheless, be available to the extent the Hosptial Authority has obtained insurance to cover an award of punitive damages. The clear import of the public policy acknowledged in MARTA v. Boswell, supra, is to eliminate the self-defeating expenditure of funds for punitive damages, or for insurance for such damages, by a governmental entity funded by tax revenues. Although the sovereign immunity applicable to the Hospital Authority in this case, and its waiver to the extent of liability insurance protection, springs from the same public policy concerns for protection of the public purse (see Googe v. Fla. Intl. Indem. Co., 262 Ga. 546, 550 (422 SE2d 552) (1992)), the public policy against the award of punitive damages stands on independent grounds unaffected by the existence of insurance coverage. Moreover, the public policy against the award of punitive damages against governmental entities enunciated by the U. S. Supreme Court in City of Newport, supra, and adopted by the Georgia Supreme Court, was based not only on a concern for the taxpayer’s purse, but also on the belief that the punitive and deterrent purposes of such an award would not be served when it is levied against the governmental entity itself, which can have no malice independent of its officials, rather than against the governmental official who committed the wrong. One concern is obviously that an award of punitive damages in this context makes no sense because it will not deter the wrongdoing public official regardless of whether the award is paid out of government coffers or from insurance purchased by the government. If the Hospital Authority has insurance which would cover an award of punitive damages, this does not alter the public policy against the award of such damages. It simply means the Authority has purchased insurance it does not need. The cases cited by the dissent dealing with the waiver of sovereign immunity to the extent of insurance coverage are not analogous, since the waiver in that context was specifically provided for by the Georgia Constitution.

The trial court erred by denying partial summary judgment in favor of the Hospital Authority.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Johnson, Blackburn and Smith, JJ., concur. Pope, C. J., Beasley, P. J., and Cooper, J., dissent.

Pope, Chief Judge,

dissenting.

I must dissent. When punitive damages are paid by an insurer rather than a governmental entity, the public policy considerations set forth in MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991) and City of Newport v. Fact Concerts, 453 U. S. 247 (101 SC 2748, 69 LE2d 616) (1991) are not present and those cases are not controlling. The only benefit derived in such a case is that the insurer is allowed to avoid its contractual obligation to pay an award of punitive damages.

This appeal arises from an action for medical malpractice, negligence, wrongful death and punitive damages filed by the administrator of the estate of Tandy Key Martin and certain other relatives of Martin against Hosptial Authority of Clarke County d/b/a Athens Regional Medical Center and three nurses, who were employed there during the time Martin was a patient. On June 25, 1989, Tandy Key Martin was admitted as a patient at Athens Regional and underwent brain surgery the next day. Plaintiffs assert that on July 15, 1989, while he was still a patient at Athens Regional, Martin was moved from his bed and allegedly restrained in a chair in his hospital room pursuant to his physician’s orders. Later that day he fell from that chair fracturing his hip, which required surgical repair. Plaintiffs further allege that on August 7, 1991 family members came to visit Martin and found his entire body, clothing, bedding and the room covered with several hundred ants. Martin died on August 31, 1991, allegedly as the result of the negligent actions of the defendants.

Pursuant to OCGA §§ 51-12-5 and 51-12-5.1, punitive damages are authorized in medical malpractice actions when there is evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to the consequences. See generally Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759 (386 SE2d 120) (1989), vacated, _U. S.__(111 SC 1298, 113 LE2d 234) (1991), on remand, 261 Ga. 613 (409 SE2d 501) (1991), cert. denied_U. S__(112 SC 1175, 117 LE2d 420) (1992). If the facts alleged in the complaint are proved, plaintiffs could show evidence of want of care sufficient to raise the presumption of conscious indifference to the consequences.

The issue of insurance coverage was not presented in MARTA v. Boswell, supra. Any award of punitive damages would have been borne by the taxpayers. Cf. MARTA v. Binns, 252 Ga. 289 (313 SE2d 104) (1984) (holding that MARTA was liable for punitive damages for actions taken in its capacity as a self-insurer). The determinant public policy underlying the decisions in MARTA v. Boswell and City of Newport v. Fact Concerts is that “blameless and unknowing taxpayers” should not be forced to pay for the consequences of official misconduct. When indemnification in the form of insurance exists, as in this case, that policy concern is not present. Rather than a blameless taxpayer bearing the burden, any punitive damages are paid by an insurer who has accepted a premium in exchange for a contractual obligation to pay such damages. In such a case the only benefit derived by not allowing the plaintiff to recover punitive damages is that the insurer receives a windfall by not having to fulfill its contractual obligation. As Justice Weltner correctly noted in a special concurrence in Toombs County v. O’Neal, 254 Ga. 390, 393 (330 SE2d 95) (1985), “[w]hen a public body has purchased liability insurance, there is no necessity for the protection which sovereign immunity provides to the public. Conversely, the insurer, as a private, for-profit entity, should not be accorded the protection of sovereign immunity, which exists for the benefit of the public. Thus, as in this case, when the public utility of sovereign immunity has evaporated, that doctrine should not serve to shield what is purely a private interest.”

Decided October 13, 1993

Reconsideration denied November 16, 1993

Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, J. Ralph Beaird, Milton F. Eisenberg II, for appellant.

Michael J. Anderson, for appellees.

The only other articulated principle underlying the expression of public policy in MARTA v. Boswell is that “ ‘[a] (governmental entity), however, can have no malice independent of the malice of its officials.’ ” MARTA v. Boswell, 261 Ga. at 428 (quoting City of Newport v. Fact Concerts, 453 U. S. at 267). Of course, only people can act with malice aforethought; therefore, that rationale applies equally to all defendants who are not individuals, including private corporations. Yet Georgia law allows recovery of punitive damages from private corporations, such as insurance companies. See generally OCGA §§ 51-12-5 and 51-12-5.1; Federal Ins. Co. v. Nat. Dist. Co., 203 Ga. App. 763 (3) (417 SE2d 671) (1992) (holding Georgia corporation which was held liable for punitive damages could seek indemnity from insurer for such damages). Because Georgia law allows punitive damages to be assessed against defendants who are not natural persons, clearly protection of the public purse is the only justification for not allowing punitive damages to be assessed against governmental entities for their tortious acts. Accord Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992) (holding the authority’s self insurance trust funds, coupled with any existing commercial insurance constitutes liability insurance protection within the meaning of Art. I, Sec. II, Par. IX of the Georgia Constitution and therefore acts as a waiver of sovereign immunity) and Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62 (2) (424 SE2d 632) (1992) (following Litterilla). The majority opinion allows a private corporation to use the public shield to protect itself from fulfilling a purely private contractual interest. When, as here, taxpayers are not forced to pay for the consequences of official misconduct, public policy considerations should not bar a plaintiff from being able to recover an award of punitive damages.

I am authorized to state that Presiding Judge Beasley and Judge Cooper join in this dissent.

       The case of MARTA v. Binns, 252 Ga. 289 (313 SE2d 104) (1984) is distinguishable. In that case, MARTA was held liable for punitive damages awarded against it, not as a tortfeasor, but as a self-insurer liable pursuant to OCGA § 33-34-6 for a bad faith refusal to pay no-fault benefits.

       We need not address whether the waiver to the extent of liability insurance protection would encompass punitive damages.

       Our Supreme Court noted in both opinions it issued in Hosp. Auth. of Gwinnett County v. Jones that the issue of whether punitive damages are appropriately awarded against a hospital authority had not been raised. 259 Ga. at 759, n. 1 and 261 Ga. at 613, n. 1. Interestingly, the Supreme Court allowed punitive damages to be recovered from the Hospital Authority of Gwinnett County after declaring in MARTA v. Boswell that punitive damages assessed against governmental entities violates Georgia public policy.

         As the majority opinion correctly notes, sovereign immunity springs from the same public policy concern of protection of the public purse.


author: Blackburn, Judge.

text:
    A93A2166.
    WILKES v. THE STATE.
    (437 SE2d 837)
   Blackburn, Judge.

On March 23, 1993, an amended six-count accusation was returned against appéllant, Charlie Wilkes. Thereafter, Wilkes was tried by a jury and convicted on three counts. Wilkes appeals his conviction.

1. In his first enumeration of error, Wilkes contends that the trial court erred in denying his motion in arrest of judgment as to Count 2, inasmuch as he was found not guilty of Count 1 which charged the same crime. The jury found Wilkes not guilty of Count 1: Homicide by vehicle in the second degree by failing to obey the instructions of an official traffic control device and/or by failing to wear corrective lens. As to Count 2, Wilkes was found guilty of: Homicide by vehicle in the second degree by failing to obey the instructions of an official traffic control device. Wilkes was found guilty of Count 3: Failure to obey the instructions of an official traffic control device. The jury next found Wilkes not guilty of Count 5: Homicide by vehicle in the second degree by failing to wear corrective lens. As to Count 6, the jury found Wilkes guilty of: Failure to wear corrective lens.

Wilkes argues that the verdict is void as to Count 2 due to the jury’s verdict as to Count 1. OCGA § 17-9-2 provides, in part, that “[vjerdicts are to have a reasonable intendment, are to receive a reasonable construction, and are not to be avoided unless from necessity.” It is reasonable to conclude from the face of the verdict that the jury intended (1) to convict Wilkes of vehicular homicide in the second degree based upon the underlying offense of failing to obey a traffic signal, (2) to convict Wilkes of the failure to obey the instructions of an official traffic control device alone, (3) to convict Wilkes for the failure to wear corrective lens violation, and (4) not to convict Wilkes for vehicular homicide in the second degree based on the underlying offense of failing to wear corrective lens.

Wilkes admits that the rule against inconsistent verdicts in criminal cases was abolished in Milam v. State, 255 Ga. 560, 562 (341 SE2d 216) (1986); however, he argues that the verdicts, in the present case, are mutually exclusive, thereby making the inconsistent verdict rule inapplicable. See Thomas v. State, 199 Ga. App. 586, 587 (405 SE2d 512) (1991), rev’d on other grounds, 261 Ga. 854 (413 SE2d 196) (1992). Wilkes’ argument applies to situations in which the defendant has been charged with, and found guilty of, more than one crime which are mutually exclusive of each other. For instance in Thomas, the defendant was charged with, and found guilty of, the crimes of armed robbery of a car and theft by receiving the car he had stolen. 261 Ga. 854. Because an essential element of the crime of theft by receiving is that the goods received were stolen by someone other than the defendant, the verdicts were mutually exclusive. Id. at 855. In the present case, the verdicts are not mutually exclusive.

Decided November 4, 1993

Reconsideration denied November 16, 1993

Hudson & Montgomery, James Hudson, John 0. Bouwsma, for appellant.

Wilkes’ assertion of error with regard to the verdict should have been made at the time the verdict was rendered. However, Wilkes’ counsel argues on appeal that no objection was made to the form of the verdict because “[t]he verdict being in favor of the appellant/defendant it would have been infortuitous if trial counsel would have objected to it.” Apparently, Wilkes’ counsel did not want to give the jury the opportunity to render a verdict to which he could not assert an inconsistency on appeal. However, the failure to object to the form of the verdict contributed to any error, therefore, Wilkes cannot be heard to complain on appeal.

2. Next, Wilkes contends that the verdict form was “confusing, misleading, contrary to each other, and harmful as a substantive matter of law” thereby requiring a new trial. Again, Wilkes’ counsel’s failure to object to the form of the verdict at the time of its rendition is fatal to his argument. Bissell v. State, 153 Ga. App. 564, 567 (266 SE2d 238) (1980).

3. Finally, Wilkes argues that the evidence was insufficient to support a verdict of guilty on the convicted charge. We disagree. Two witnesses testified that the traffic light on the east/west side of the intersection was green. Wilkes’ log-hauling truck approached the intersection from the north. Wilkes’ testimony conflicted as to whether the light was red or yellow when he entered the intersection and collided with the victim’s vehicle. Our review of the record in the light most favorable to the verdict indicates that the evidence was sufficient to support the jury’s verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). However, pursuant to OCGA.§ 16-1-7, Wilkes’ convictions on both Count 2 (homicide by vehicle in the second degree by failing to obey the instructions of an official traffic control device) and Count 3 (failure to obey the instructions of an official traffic control device) cannot stand as Count 3 is a lesser-included offense to Count 2. Therefore, Wilkes’ conviction on Count 3 is reversed. Nash v. State, 179 Ga. App. 702 (347 SE2d 651) (1986). Wilkes’ sentence is to remain the same as the trial court imposed no sentence as to Count 3.

Judgment affirmed in part and reversed in part.

Johnson, J., concurs. McMurray, P. J., concurs in the judgment only.

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellee.


author: Birdsong, Presiding Judge.

text:
    A93A1943.
    HARDEN v. THE STATE.
    (438 SE2d 136)
   Birdsong, Presiding Judge.

Larry Harden appeals his conviction for aggravated child molestation. The evidence shows that in Grant Park, appellant lured a boy to his home by promising him a puppy, and forced anal sodomy upon the child. The child then ran to a neighboring apartment. The woman who lived there took him to the apartment rental office and police were called. Immediate medical examinations revealed the child had been sexually assaulted and was nervous, upset and in pain. Appellant appeared at trial as a man. The child described appellant as a woman, but the evidence showed that appellant dressed as a woman; the neighbor to whom the child ran also had thought appellant was a woman. Appellant enumerates two errors in the trial court. Held:

1. The trial court did not err in admitting similar transaction evidence that appellant had committed a similar offense in 1977, as to which another male testified that when he was seven years old, he encountered appellant in Grant Park; appellant lured him to his home by promising to let the child play with toy trains. In that encounter, appellant was dressed as a woman, but took his wig off when he took the child to his apartment; he pointed a gun at the child and forced anal sodomy upon him. Appellant pled guilty to that charge.

This evidence was properly admitted as a similar transaction. See Stephan v. State, 205 Ga. App. 241 (2) (422 SE2d 25); Willis v. State, 201 Ga. App. 365 (2) (410 SE2d 827). The mere passage of time between the similar incidents in these circumstances does not lessen the validity of this evidence as a similar transaction, particularly where the defendant spent part of the intervening years in incarceration for the other offense. Moore v. State, 207 Ga. App. 412 (1) (427 SE2d 779); see also Payne v. State, 207 Ga. App. 312 (3) (428 SE2d 103); Stephens v. State, 205 Ga. App. 403 (1) (422 SE2d 275).

Decided November 16, 1993.

Venice R. Daley, Andrei G. Howze, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

2. The trial court did not err in denying appellant’s motion for continuance, which he sought during trial so that he could impeach the witness testifying to the similar transaction, by showing that witness’ own subsequent criminal record. Proper notice was given of the State’s intent to introduce evidence of that similar offense involving that witness; appellant had ample opportunity to investigate that witness’ background and obtain his criminal records. The State was under no obligation to introduce that witness’ criminal records. See Bacon v. State, 207 Ga. App. 39, 40 (427 SE2d 32); Hill v. State, 187 Ga. App. 150 (15) (369 SE2d 790). Appellant failed to exercise that due diligence which would authorize the grant of a continuance. See OCGA § 17-8-20. The grant or denial of continuance is a matter of the trial court’s discretion; the trial court did hot abuse its discretion in denying a continuance on this ground, and we will .not reverse the conviction on that account. Swint v. State, 199 Ga. App. 515 (405 SE2d 333).

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A93A1113.
    ANDERSON v. THE STATE.
    (438 SE2d 376)
   Johnson, Judge.

This is the second appearance of this case before this court. In Anderson v. State, 199 Ga. App. 595 (405 SE2d 504) (1991), we affirmed Roy Anderson’s conviction of driving a motor vehicle while under the influence of alcohol. On certiorari, however, the Supreme Court reversed, holding that one of the charges given by the trial court may have confused or misled the jury. Anderson v. State, 262 Ga. 26, 27 (413 SE2d 732) (1992). Anderson received a new trial, but was again convicted of driving under the influence of alcohol. It is from this conviction and the denial of his motion for a new trial that he now appeals.

1. In his first two enumerations of error, Anderson contends that the trial court erred in denying his motion for a directed verdict of acquittal and in denying his motion for a mistrial. He offers no arguments in support of these assertions of error and has therefore abandoned them pursuant to Court of Appeals Rule 15 (c) (2). Moreover, after reviewing the entire record, we conclude that the court did not err in denying Anderson’s motions for a directed verdict of acquittal or mistrial.

2. Anderson contends that the court erred in directing the “redrawing of the accusation during the course of the trial.” The original accusation in this case showed Anderson’s blood-alcohol content to be 9.12 percent. Sometime prior to the first trial in December 1989, that percentage was changed to 0.12 percent to correct what was obviously a clerical error. We do not believe that this correction of what was clearly a typographical error rises to the level of an amendment. However, even if it could be considered an amendment, such a change would be authorized. “ ‘Prior to trial, the prosecuting attorney may amend the accusation to allege or to change the allegations regarding any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation.’ ” Tarver v. State, 198 Ga. App. 634, 635 (402 SE2d 365) (1991); OCGA § 17-7-71 (f). This corrected accusation was served on Anderson in December 1989, nearly three years before the second trial. Anderson had more than enough time to prepare for trial under the corrected accusation. See Shults v. State, 195 Ga. App. 525, 527 (1) (394 SE2d 573) (1990) (holding an accusation amended so as to charge defendant under another subsection of same Code section eight days before trial not defective).

Moreover, Anderson did not make a proper or timely objection to the form of the accusation. While he knew about the correction prior to the first trial in 1989, Anderson made no motion to dismiss or quash and in fact never even objected to the change prior to either the 1989 or the 1992 trial. Such an objection to an accusation must be made before arraignment and is deemed waived if not made at the proper time. Scott v. State, 207 Ga. App. 533, 535 (428 SE2d 359) (1993). He has thus waived his right to do so. We find no error.

3. Anderson complains that the court erred in refusing to allow a State’s witness to respond to questions on cross-examination regarding the contents of a hospital record without first tendering the document into evidence. Anderson made no exception to the ruling, and in fact acquiesced in the ruling and cannot now complain of error. See Whisnant v. State, 178 Ga. App. 742, 744 (2) (344 SE2d 536) (1986).

4. Anderson complains that the court erred in charging the jury that should they find that a witness made a prior inconsistent statement and that such statement is material to the case, then the jury is authorized to consider that prior statement for impeachment purposes, and also as substantive evidence. The charge is supported by the evidence and is a correct statement of the law. See Johnson v. State, 185 Ga. App. 505, 506 (1) (364 SE2d 893) (1988). We find no error.

Decided November 1, 1993

Reconsideration denied November 17, 1993

Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, Rosanna Szabo, Richard E. Thomas, Assistant Solicitors, for appellee.

5. During its deliberations the jury asked the court the following question: “Does one officer signing another officer’s name, without notifying such, invalidate the document?” This question pertained to a hospital’s request for blood form upon which one police officer had signed the name of the police officer in charge of the case without his express authorization. In response to the jurors’ question, the court charged them that the validity of the hospital document was not necessary to their determination of Anderson’s guilt or innocence. Anderson contends that the court erred in charging the jurors that they need not consider the validity of the document in performing their duty. This contention is without merit. It is the function of the jury to determine questions of fact. See Wright v. State, 199 Ga. App. 718, 721 (4) (405 SE2d 757) (1991). The “validity” of the document is a legal question to be decided by the trial judge at the time it was introduced into evidence. Here, the judge implicitly found that the proper foundation had been laid for allowing the document into evidence and admitted it upon Anderson’s request. Anderson cannot now complain that the document he offered in evidence was inadmissible. See Smith v. State, 189 Ga. App. 244, 245 (2) (375 SE2d 496) (1988).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A1163.
    KUNZLER ENTERPRISES, INC. et al. v. ROWE et al.
    (438 SE2d 365)
   McMurray, Presiding Judge.

Bruce A. Rowe, Kirk D. Rowe and AKB Enterprises, Inc. (hereinafter referred to as “plaintiffs”), brought suit against Kunzler Enterprises, Inc. (“Kunzler”), and Pioneer Potato Company, Inc. (“Pioneer”), in the Superior Court of Muscogee County. They alleged that Pioneer manufactures and distributes Tropical Sno Yogurt; that Kunzler distributed Tropical Sno Yogurt in Georgia; that plaintiffs made inquiries about Tropical Sno Yogurt because they intended to open and operate a retail yogurt shop at the Columbus Square Mall in Columbus, Georgia; that defendants represented to plaintiffs that Tropical Sno Yogurt could be sold at the retail level in Georgia; that the representations were false and defendant knew they were false because Tropical Sno Yogurt was not pasteurized or reconstituted at a pasteurization plant; that defendants made the representations with intent to deceive and defraud plaintiffs; that in reliance upon defendants’ representations, plaintiffs entered into a dealer agreement with defendant Kunzler; that plaintiffs spent considerable sums to vend Tropical Sno Yogurt at their Columbus Mall location; that the Georgia Department of Agriculture seized plaintiffs’ supply of Tropical Sno Yogurt and refused to permit plaintiffs to sell Tropical Sno Yogurt; and that plaintiffs incurred substantial damages as a direct and proximate result of defendants’ fraud and deception. Plaintiffs sought actual damages, punitive damages and attorney fees. Defendants answered the complaint and denied any liability to plaintiffs.

The case proceeded to trial and the jury returned a verdict in favor of plaintiffs and against defendants for actual damages, in the amount of $69,933.49, and attorney fees, in the amount of $12,800. The jury did not award punitive damages.

Defendants filed a joint notice of appeal. However, only defendant Pioneer filed the requisite enumerations of error and brief for itself. It asserts, inter alia, that the trial court erred in denying its motion for a directed verdict because plaintiffs failed to prove damages. We agree and reverse.

“An action for deceit lies where one has been induced to enter into a contract as the result of the fraudulent misrepresentations of another and where, on discovery of the fraud, he elects to affirm the contract and sue for damages. Mosely v. Johnson, 90 Ga. App. 165 (82 SE2d 163). In such an action, the measure of damages is the actual loss sustained by the plaintiff, and if the contract is one of purchase and sale the ‘actual damages’ are the difference between the value of the thing sold at the time of delivery and what would have been its value if the representations made by the defendants had been true. Commercial City Bank v. Mitchell, 25 Ga. App. 837 (3a) (105 SE 57).” Spindel v. Kirsch, 114 Ga. App. 520 (1) (151 SE2d 787).

In the case sub judice, plaintiffs introduced no evidence demonstrating the difference between the value of their contract with Kunzler to buy and resell Tropical Sno Yogurt and what the value of the contract would have been if the representations made by the defendants had been true. Instead, plaintiffs merely introduced evidence showing the expenses they incurred in starting up their yogtirt shop business. (Plaintiffs claimed that they incurred expenses totaling $80,554.65. These expenses included furnishings ($14,630.06), machinery ($19,214), equipment ($5,433.60), and lease payments ($41,276.99). Plaintiffs began making the lease payments on May 14, 1988, and they made the payments every month until the end of 1989. That is when plaintiffs closed their yogurt shop business. In light of our ruling, we need not decide whether the lease payments can be deemed start-up costs. We also need not decide whether or how to factor in the money (over $100,000) which plaintiffs grossed during the time they stayed in business.

Decided October 22, 1993

Reconsideration denied November 17, 1993

Harkleroad & Hermanee, Donald R. Harkleroad, James P. Hermanee, Timothy J. McGaughey, for appellants.

Harp & Johnson, Gary L. Johnson, James D. Patrick, Jr., for appellees.

The start-up costs were not plaintiffs’ damages. See Spindel v. Kirsch, 114 Ga. App. 520 (1), supra. This is especially so because plaintiffs planned to start a yogurt shop business whether they were going to use Tropical Sno Yogurt or some other brand of yogurt in their business. (Ironically, plaintiffs decided to use Tropical Sno because it was a dry mix that required no refrigeration and, therefore, cut down on their start-up costs. When plaintiffs were told they could no longer sell Tropical Sno Yogurt in Georgia, they started selling another brand of yogurt which required refrigeration.) Thus, plaintiffs would have incurred start-up expenses for their yogurt shop whether they purchased Tropical Sno Yogurt or some other brand of yogurt (which they could have sold at retail in Georgia).

Judgment reversed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1446.
    HODO v. GENERAL HOSPITALS OF HUMANA, INC.
    (438 SE2d 378)
   Blackburn, Judge.

The appellant, Inez Hodo, commenced this action against General Hospitals of Humana, Inc. (Humana), to recover for injuries she sustained while undergoing physical therapy at Humana. In answering the complaint, Humana asserted Hodo’s failure to attach an expert’s affidavit as required under OCGA § 9-11-9.1 in professional malpractice actions. After discovery was completed, Humana moved for summary judgment, which was granted by the trial court, and this appeal followed.

The record shows that Hodo, who was a double amputee of her legs due to complications of diabetes, went to Humana on October 7, 1991, for physical therapy to learn how to walk with a prosthesis. According to the director of Humana’s physical therapy department, physical aides normally assist physical therapy patients during walking exercises, but only after a licensed physical therapist first evaluated the individual patient’s capacity and needs.

On the day in question, Elijah Basa, a licensed physical therapist, was making such an evaluation as he assisted Hodo at some parallel bars. During that session, Hodo fell as she attempted to turn around. There was some dispute as to whether Basa properly held onto Hodo at the time of the fall.

In its order granting summary judgment for Humana, the trial court did not elaborate on the grounds for its determination. However, in its subsequent order denying Hodo’s motion for reconsideration, the trial court found that Hodo’s action sounded in professional malpractice, that Hodo had not filed an expert’s affidavit as required in professional malpractice actions, and that Hodo failed to rebut Humana’s evidence that Basa had complied with the applicable standard of care for licensed physical therapists.

1. We reject Hodo’s initial contention that the trial court erred in considering Humana’s motion for summary judgment because it was untimely. The motion was filed on December 30, 1992, only 11 days after the discovery period was completed. Because the case was placed on the trial calendar for January 11, 1993, Humana also filed a motion for continuance at that time. However, the trial court never ruled on that motion because Hodo’s case, which was last on the calendar, was never called for trial on January 11, 1993, and summary judgment for Humana was entered on February 2, 1993, before the case was rescheduled for trial.

Uniform State Court Rule 6.6 provides that “[m]otions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment.” In the instant case, Humana’s filing of the motion for summary judgment only 11 days after completion of the discovery period was not untimely, without more, and inasmuch as the case was never reached on the trial calendar for January 11, 1993, there was no continuance of the trial due to the filing of that motion. See generally Hendrickson v. Pain Control &c. Institute of Ga., 205 Ga. App. 843 (3) (424 SE2d 27) (1992).

2. Hodo contends that her cause of action asserted simple negligence, not professional malpractice, and that the trial court thus erred in granting summary judgment for Humana due to her failure to provide an expert’s affidavit. We also find that contention to be without merit.

Decided November 3, 1993

Reconsideration denied November 17, 1993.

Cuffie & Smith, Thomas F. Cuffie, Rufus Smith, Jr., for appellant.

Smith, Gambrell & Russell, David M. Brown, Samuel D. McLean, Jr., for appellee.

“We note at the outset that a failure to comply with the pleading requirements of OCGA § 9-11-9.1 would not authorize the grant of summary judgment. See Robinson v. Starr, 197 Ga. App. 440, 441 (2) (398 SE2d 714) (1990). However, we will address the merits of this appeal as if the trial court had dismissed [Hodo’s] complaint rather than granted summary judgment in [Humana’s] favor.” Druckman v. Ethridge, 198 Ga. App. 321 (1) (401 SE2d 336) (1991).

Physical therapists must be licensed pursuant to OCGA § 43-33-11, and thus are “professionals” within the intendment of OCGA § 9-11-9.1. Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992). Under OCGA § 9-11-9.1 (a), in any action for damages alleging professional malpractice, the plaintiff must file with the complaint an affidavit of an expert setting forth at least one negligent act and the factual basis for such. The failure to comply with that affidavit requirement subjects a complaint to dismissal for failure to state a claim, which is a dismissal on the merits. Lutz v. Foran, 262 Ga. 819 (4) (427 SE2d 248) (1993).

Where the alleged negligence does not involve the exercise of professional judgment and skill, the cause of action is in simple negligence, and no expert’s affidavit is necessary. Lutz v. Foran, supra. However, in the instant case, Hodo’s physical capacity was the determinative factor as to the degree of supervision to be accorded her during physical therapy, and Basa’s evaluation of her capacity during the initial session required the exercise of his professional judgment. See General Hospitals of Humana v. Bentley, 184 Ga. App. 489 (361 SE2d 718) (1987). As such, Hodo’s action against Humana alleged professional malpractice, and her failure to file an expert’s affidavit pursuant to OCGA § 9-11-9.1 required dismissal of her complaint.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A1494.
    WILLIAMS v. THE STATE.
    (438 SE2d 126)
   Blackburn, Judge.

The appellant, Bernard Williams, was indicted along with several other individuals for multiple drug-related offenses. Following the trial court’s denial of his motion to suppress wiretap communications seized by the police pursuant to an investigation warrant, Williams pleaded guilty to conspiracy to possess cocaine with the intent to distribute, conditioned upon the preservation of his right to appeal the denial of his motion to suppress. See Mims v. State, 201 Ga. App. 277 (1) (410 SE2d 824) (1991).

For several years preceding the events in issue here, police officers with the Rome/Floyd Metro Task Force had received numerous complaints from concerned citizens and reports from confidential informants regarding the activity of Williams and his family in the distribution of narcotics in that area. In the course of the ongoing investigation of such, on March 20, 1992, the district attorney applied for and obtained authorization for a pen register to be placed on the residential telephone of Williams’ mother for a 20-day period. Operation of this pen register terminated on April 9, 1992, as specified in the investigation warrant, but the return of the warrant was not filed until May 1, 1992, twelve days beyond the 30-day deadline provided in OCGA § 16-11-64 (b) (6). .

Based in part on the information obtained as a result of that pen register, on April 14, 1992, the district attorney applied for and obtained an. investigation warrant to wiretap Williams’ residential telephone for the 20-day period from April 14, 1992, through May 3, 1992. On May 13, 1992, the district attorney timely filed the return of the warrant, and at that time he also tendered 62 cassette tapes of recorded intercepted calls. The superior court then issued an order for the tapes to be sealed, after finding that (1) the tapes had not been tendered immediately following the actual wiretap period because of the law enforcement officers’ involvement with securing arrest warrants and executing search warrants, and the court’s own inaccessibility due to its trial calendar, and (2) the tapes had not been tampered with. Those intercepted communications supplied the basis for arresting Williams and the other individuals involved in the narcotics ring.

1. Williams contends that the intercepted communications should have' been suppressed because the investigating police officer maintained possession of the pen register warrant and supporting documents after the return of the warrant without a written order of the issuing judge as required by OCGA § 16-11-64 (b) (5), and because the return of the pen register warrant was not filed within 30 days of the issuance of the warrant as required by OCGA § 16-11-64 (b) (6). However, neither deficiency provides any basis for suppressing the intercepted communications from Williams’ telephone, because Williams has no standing to complain of any noncompliance with the procedural safeguards applicable to the pen register warrant placed on his mother’s telephone. “When the voice of an individual is not heard and the tap is not on his premises, he has no standing. [Cit.]” Ellis v. State, 256 Ga. 751, 755 (353 SE2d 19) (1987).

2. Williams also contends that the application for the investigation warrant for the wiretap on his telephone failed to show that conventional investigation techniques had been tried and failed, or were unlikely to be successful, as required by 18 USCA § 2518 (1) (c). However, the application and the supporting affidavit specifically pointed out that (1) ordinary surveillance would be easily detected because Williams’ home was located in a heavily populated area; (2) any attempts to infiltrate the criminal enterprise would be difficult and dangerous, and risk revelation of the investigation; (3) the only effective way to discover all participants in the narcotics ring, i.e., suppliers and purchasers, would be by wiretap; and (4) the secrecy with which persons engaged in such conspiratorial criminal enterprises would frustrate other investigative techniques.

“[Sections] 2518 (1) (c) and (3) (c) are simply designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. Their purpose is not to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques. The provisions contemplate that the showing be tested in a practical and commonsense fashion.” (Citations and punctuation omitted.) State v. Bilbo, 240 Ga. 601, 602 (242 SE2d 21) (1978). See also Romano v. State, 162 Ga. App. 816, 820 (292 SE2d 533) (1982).

In the instant case, the application and supporting affidavit for the wiretap warrant sufficiently demonstrated that conventional investigative techniques had been tried but were unsuccessful, or were likely to fail, in proving the drug trafficking enterprise and in uncovering all of its participants. Considered in a practical and commonsense fashion, that showing complied with 18 USCA § 2518, and the trial court properly denied Williams’ motion to suppress on that basis.

3. 18 USCA § 2518 (5) requires an investigation warrant to contain a provision that the wiretap shall be conducted in such a way as to minimize the interception of communications unrelated to the investigation. In the warrant authorizing the wiretap of Williams’ telephone, the issuing judge complied with that statutory mandate by instructing that the “district attorney, law enforcement officers, and agents are forbidden to record any conversations or discussions which are personal and private in nature or not specified in this warrant.” Williams contends that the officers failed to conduct the wiretap in a manner that would minimize the interception of such personal communications, as instructed in the investigation warrant.

Pursuant to the minimization order contained in the warrant, the supervising police officer instructed the officers conducting the wiretap to cease interception of a call as soon as it was determined that the call was personal and unrelated to the investigation, but to resume interception approximately 45 seconds later to check whether the call remained purely personal. A total of 1,001 calls was intercepted, but approximately three fourths of those calls resulted in no conversation (no answers, busy signals, answering machine response with no message, etc.). The majority of the remaining calls actually involving conversations were very brief, lasting one minute or less. During the wiretap, 32 calls were minimized to excise the personal conversation, and 29 calls were regarded as evidence.

18 USCA § 2518 (5) “does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to ‘minimize’ the interceptions of such conversations. Whether the agents have in fact conducted the wiretap in such a manner will depend on the facts and circumstances of each case.” Scott v. United States, 436 U. S. 128, 140 (98 SC 1717, 56 LE2d 168) (1978).

In the instant case, only about one fourth of the intercepted calls resulted in conversations, and most of those conversations terminated after one minute or less. As a practical matter, those conversations ended by the time the executing officers could determine whether the calls were personal in nature. “In a case such as this, involving a wide-ranging conspiracy with a large number of participants, even a seasoned listener would have been hard pressed to determine with any precision the relevancy of many of the calls before they were completed.” Scott v. United States, id. at 142. See also United States v. Homick, 964 F2d 899 (9th Cir. 1992), where listening to all wiretap conversations for two minutes before terminating surveillance did not violate the minimization requirement.

In Scott, the United States Supreme Court also suggested that more extensive surveillance may be justified in an attempt to determine the scope of a widespread conspiratorial enterprise. Scott v. United States, supra at 140. Such a determination was one of the primary purposes of the wiretap in this case. Given that need and purpose for the wiretap, and the brevity of most of the intercepted calls, the trial court did not err in concluding that the executing officers took reasonable measures to minimize the interception and monitoring of Williams’ telephone calls. Accordingly, the trial court properly denied Williams’ motion to suppress on that ground as well.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Reconsideration denied November 17, 1993

Jones, Byington, Durham & Payne, Luther H. Beck, Jr., for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.


text:
    A93A1958.
    KING v. THE STATE.
    (438 SE2d 93)
   Blackburn, Judge.

On December 9, 1992, an accusation was filed in Ware State Court charging Jerome King, appellant, with driving under the influence of alcohol and simple battery. After King’s motion to suppress was denied, he pled nolo contendere to the charge of driving under the influence. King specifically reserved his right to appeal the trial court’s denial of his motion to suppress the results of a breath test. This appeal followed.

On October 13, 1992, a Waycross police officer stopped the vehicle which King was driving for the purpose of executing an arrest warrant issued on September 21, 1992, by a Ware County magistrate. The officer making the stop observed that King had been drinking. Based on his observations and evidence obtained during the stop, King was charged with driving under the influence. It is uncontroverted that the only basis for the initial stop was the outstanding warrant on King.

On appeal, King complains that no probable cause had existed for the issuance of the arrest warrant, thereby making any evidence obtained during the stop inadmissible. King also complains that the State failed to prove that facts sufficient for a determination of probable cause were presented to the magistrate who issued the warrant. As King’s enumerations are closely related, they will be discussed together.

During the middle of the night on September 20, 1992, Officer Stone, of the Waycross Police Department, was called twice to check disturbances at 210 Thomas Street. At the scene, Ms. Geraldine Taylor accused Jerome King of slapping her around, hitting her in the face, pointing a gun at her face, and pushing her through a window.

Thereafter, Officer Stone prepared a report detailing the incidents. According to the police department’s procedures, Officer Stone gave a copy of his report to the day-watch sergeant. Officer Arvie Dyal prepared an affidavit in which he swore that to the best of his knowledge and belief Jerome King committed the offense of disorderly conduct-family violence, in that on September 20, 1992, in Ware County, King struck Ms. Taylor in the face and pulled a .38 caliber pistol and pointed it at her face. Thereafter, the magistrate issued a warrant for the arrest of King. Officer Stone testified that it is the police department’s standard procedure to present the magistrate with a copy of the police report at the time an arrest warrant is sought; however, there was no evidence presented as to whether the magistrate, in fact, received a copy of Stone’s report in this case.

Initially, we note that although the issuance of an arrest warrant must be supported by probable cause, an affidavit submitted in support of an application for an arrest warrant need not alone demonstrate the existence of probable cause. Devier v. State, 253 Ga. 604 (5) (323 SE2d 150) (1984). On appeal, King concedes that the affidavit submitted to the issuing magistrate complied with the statutory requirements of such affidavits provided in OCGA § 17-4-41. However, he contends that the trial court should have granted his motion to suppress because the arrest warrant was not supported by probable cause.

1. Following his stop of King’s vehicle, the arresting officer detected a strong odor of alcohol about King’s person. The officer’s investigation of that condition led to King being charged with driving under the influence, and to the administration of the breath test that forms the subject of King’s motion to suppress. We find that investigation to be untainted by any alleged illegality associated with the arrest warrant, as the arrest resulted from a crime committed in the presence of the arresting officer.

A search and seizure incident to an arrest made pursuant to an invalid arrest warrant may require suppression of tangible evidence so obtained. OCGA § 17-5-30, generally. “However, evidence is not fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” (Punctuation omitted.) Ruffin v. State, 201 Ga. App. 792, 793 (412 SE2d 850) (1991), quoting from Wong Sun v. United States, 371 U. S. 471, 487-488 (83 SC 407, 9 LE2d 441) (1963).

In the instant case, notwithstanding any alleged infirmity of the arrest warrant on the family violence charge, when the arresting offleer stopped King and observed what appeared to be the commission of another offense in his presence, he had a duty to investigate the matter. In such a situation, the fruit of that investigation cannot reasonably be treated as the fruit of the original, allegedly illegal stop. Where the seizure of evidence thus results from a “second” arrest arising from a police officer’s having witnessed the commission of an independent crime, there is sufficient attenuation between the original stop and the evidence regarding the independent crime, so that the latter is untainted by any alleged illegality associated with the former. Ruffin v. State, supra. Accordingly, the trial court properly denied King’s motion to suppress.

King misplaces his reliance upon Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992),. in which our Supreme Court, based upon the unequivocal terms of OCGA § 17-5-30, rejected the federally permissible good-faith exception to the probable cause requirement in the execution of a search warrant. While Gary may apply where a good-faith reliance upon an arrest warrant is necessary to uphold a search and seizure of tangible property incident to the execution of the arrest, it has no bearing where the subject evidence is the fruit of a bona fide investigation of an independent crime witnessed by the arresting officer. Further, although the compelled administration of a breath test implicates Fourth Amendment rights, OCGA § 17-5-30 does not govern motions to suppress such evidence. State v. Johnston, 249 Ga. 413 (291 SE2d 543) (1982). Inasmuch as the holding in Gary is specifically based upon the application of OCGA § 17-5-30, it is inapposite here.

King similarly misplaces his reliance upon Giordenello v. United States, 357 U. S. 480 (78 SC 1245, 2 LE2d 1503) (1958), wherein the United States Supreme Court found an arrest warrant unsupported by probable cause under the Federal Rules of Criminal Procedure, thereby rendering the search and seizure incident to the execution of that warrant illegal. Specific deficiencies noted in the affidavit included the lack of an affirmative allegation that the affiant spoke from personal knowledge; no indication of the source of the affiant’s knowledge; and the failure to set forth any other sufficient basis which supported a finding of probable cause. See also Garmon v. Lumpkin County, Ga., 878 F2d 1406 (11th Cir. 1989).

In Giordenello, the government relied solely upon the conclusory affidavit to establish probable cause when applying for the arrest warrant. On appeal, the government argued for the first time that under state law even a warrantless arrest of the defendant had been authorized. The Supreme Court acknowledged that in the absence of a controlling federal statute, the law of the state where the arrest occurred determined the federal officers’ authority to arrest without a warrant, but refused to consider that argument because the government failed to raise it before the trial court. However, it did not preclude the government from asserting such ground for upholding the arrest and subsequent search and seizure, in the event of a new trial in the matter.

In the instant case, unlike Giordenello, there was no requirement under OCGA § 17-4-41 that the affidavit alone had to demonstrate the existence of probable cause to support the arrest warrant, and the State did not rely upon the validity and execution of that arrest warrant to authorize obtaining the breath test. Rather, as discussed above, the breath test was obtained as a result of the arresting officer’s investigation of the DUI offense committed in his presence. Accordingly, Giordenello is inapposite here as well.

2. Denial of King’s motion to suppress was also proper because the arrest warrant was not shown to be invalid. “The State has the burden to prove that a challenged search or seizure was lawful. . . .” Baez v. State, 206 Ga. App. 522, 526 (1) (425 SE2d 885) (1992). In the instant case, it must be emphasized that the only basis for suppression of the breath test asserted by King in his motion was that at the time of the stop of his vehicle, “defendant was acting in a lawful manner, and said authorities had no articulable suspicion or probable cause for said stop.” The motion in no way attacked the validity of the arrest warrant; indeed, defense counsel acknowledged that he had not realized until the morning of the hearing on the motion that there had been an arrest warrant. In response to King’s motion to suppress, the State thus merely had the burden of showing a legal basis for stopping King’s vehicle.

In this regard, OCGA § 17-4-20 authorizes a law enforcement officer to arrest an individual for a crime pursuant to an arrest warrant. It follows that the State met its burden of showing a legal basis for stopping King by producing the arrest warrant and supporting affidavit which the arresting officer was executing when he stopped King. Cf. Marshall v. State, 130 Ga. App. 572 (203 SE2d 885) (1974).

King nevertheless argues that the arrest warrant provided no legal basis for stopping his vehicle, because the supporting affidavit alone was insufficient to establish probable cause and the State failed to show that other evidence had been presented to the issuing magistrate to satisfy that requirement. The hearing testimony showed that the police department’s standard operating procedure included presenting the issuing magistrate with a copy of the police report when applying for an arrest warrant, but there was no affirmative showing that such was done in this case. However, considering the only basis for suppression of the evidence stated in King’s motion, the State had no reason for developing the evidence to make that proof. Rather, upon the State’s production of the arrest warrant establishing a lawful basis for stopping King, King had the burden of showing the illegality of that warrant, and he failed to do so. Cf. Bryant v. Griffin, 220 Ga. 154 (137 SE2d 640) (1964).

Decided September 23, 1993

Reconsideration denied November 17, 1993

Hackel & Hackel, Thomas M. Hackel, for appellant.

Douglas L. Gibson, Solicitor, for appellee.

Under these circumstances, the trial court properly denied King’s motion to suppress on that basis as well. To hold otherwise would fault the State for King’s own failure to prove the illegality of the arrest warrant. This holding is consistent with the respective burdens placed on the State and the defendant movant with regard to motions to suppress filed pursuant to OCGA § 17-5-30, pertaining to unlawful searches and seizures of tangible property. See State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984).

3. Lastly, we note that the testimony adduced during the hearing on the motion to suppress and the police report contained in the record demonstrated the existence of probable cause to arrest King for an act of family violence as defined in OCGA § 19-13-1. Under OCGA § 17-4-20, even a warrantless arrest for such a violation was authorized, “and the alleged infirmity of the arrest warrant actually obtained did not render the arrest illegal.” Stansell v. State, 174 Ga. App. 511, 512 (330 SE2d 441) (1985).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       The trial court severed the simple battery charge from the driving under the influence of alcohol charge and it is not involved in this appeal.


text:
    A93A2074.
    McCULLOUGH v. THE STATE.
    (438 SE2d 369)
   Blackburn, Judge.

Following the trial court’s denial of his motion to suppress, the appellant, Stanley McCullough, pled guilty to possession of cocaine, possession of marijuana, possession of a machine gun, and one count of possession of a firearm by a convicted felon. McCullough was subsequently sentenced to ten years in prison with the last five years to be served on probation.

The undisputed evidence produced at the motion to suppress hearing by the State shows that on the afternoon of September 21, 1992, Deputy Greg Latta, of the Dade County Sheriff’s Department, received a radio dispatch that McCullough was operating a yellow Mercedes in a certain area on a suspended license. The dispatcher gave instructions that McCullough should be apprehended. Deputy Latta later arrived at the designated area where McCullough had been stopped by another deputy. Deputy Latta approached McCullough, asked to see his driver’s license, and in response, McCullough produced a Georgia driver’s license. Latta subsequently requested that the department conduct a computer check on McCullough’s license, and was informed that McCullough’s Tennessee license had been suspended. Relying on this information, Latta placed McCullough under arrest.

During custodial interrogation of McCullough, he admitted that he had firearms in his possession at his residence as observed by officers during a prior arrest. A search warrant was obtained for the search of his home for the weapons. While executing the search warrant for weapons, and during their seizure of the firearms, the officers noticed contraband in McCullough’s home. Another search warrant was obtained for the contraband, and the contraband was seized by the officers during a subsequent search of the home. It is undisputed that the searches were executed pursuant to valid warrants.

In this appeal, McCullough challenges the trial court’s denial of his motion to suppress. In his sole enumeration of error, McCullough maintains that Deputy Latta lacked the requisite probable cause to justify the warrantless arrest which resulted in the subsequent searches and seizure. We disagree.

“The legality of a warrantless arrest depends upon whether, at the moment the arrest was made, the [officer] had probable cause to make it — whether at the moment the facts and circumstances within [his] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.” (Citations and punctuation omitted.) McKenzie v. State, 208 Ga. App. 683, 684 (431 SE2d 715) (1993). “While [computer license] printouts are not alone sufficient evidence to permit conviction, the cases uniformly recognize that [such] printouts are reliable enough to form the basis of the reasonable belief which is needed to establish probable cause for arrest.” (Citations and punctuation omitted.) Paxton v. State, 160 Ga. App. 19 (285 SE2d 741) (1981). In addition, information obtained by officers engaged in an investigation can be used by other officers involved in the investigation as a reliable basis for the establishment of probable cause. Parker v. State, 161 Ga. App. 37 (3) (288 SE2d 852) (1982). See also Goodman v. State, 255 Ga. 226 (13) (336 SE2d 757) (1985); Curry v. State, 255 Ga. 215 (336 SE2d 762) (1985); Gray v. State, 207 Ga. App. 648 (2) (428 SE2d 663) (1993); Waldrip v. State, 205 Ga. App. 864, 865 (424 SE2d 31) (1992).

In the present case, the information that Deputy Latta received from a fellow officer through a radio dispatch that McCullough was driving on a suspended license at a given location was subsequently verified by locating McCullough driving at the given location and through a computer check of his driving record, and provided the requisite probable cause to justify the warrantless arrest. Reasonable minds cannot differ that the initial radio dispatch was sufficient to form an articulable suspicion authorizing the brief investigatory stop. McConnell v. State, 188 Ga. App. 653 (1) (374 SE2d 111) (1988). The information given to Deputy Latta prior to McCullough’s arrest showed that McCullough had been driving under a suspended license, albeit a suspended Tennessee license. Under such exigent circumstances, the officer is not expected to be able to determine the legal ramifications of McCullough’s operation of a vehicle under a license suspended in Georgia in contrast to a license suspended in Tennessee after a valid Georgia license has been issued. The deputy’s actions were not arbitrary and harassing and would warrant the belief of a reasonable man that a crime had been committed.

We reject McCullough’s argument that the Supreme Court’s condemnation of the use in this State of the good faith exception to the exclusionary rule in Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992), controls the present facts. In Gary, our Supreme Court held that the good faith exception to the exclusionary rule of United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984), does not apply in Georgia where tangible evidence has been seized pursuant to a search warrant which lacked probable cause, considering the legislature’s codification of a specific exclusionary rule in OCGA § 17-5-30.* The Gary court reversed the lower court’s denial of a motion to suppress because the search warrant therein lacked probable cause. In the instant case, a search warrant was not issued, and, more importantly, the officer in question had the requisite probable cause at the time of the warrantless arrest. Consequently, Gary is inapplicable.

Accordingly, we must conclude that the trial court did not err in denying McCullough’s motion to suppress.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Decided October 26, 1993

Reconsideration denied November 17, 1993

Christopher Townley, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Grover Hudgins, Assistant District Attorney, for appellee.

       In pleading guilty, McCullough reserved his right to appeal the trial court’s denial of his motion to suppress pursuant to Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991).

       McCullough was initially indicted for possession of cocaine, manufacturing marijuana, possession of more than one ounce of marijuana, possession of a machine gun and two counts of possession of a firearm by a convicted felon. The state nol prossed the remaining offenses.

       McCullough surrendered a valid Tennessee license at the time that he applied for his Georgia driver’s license on November 3, 1988, pursuant to OCGA § 40-5-20.

       The initial investigatory stop has not been challenged by McCullough in this appeal.

       Under OCGA § 17-5-30, an aggrieved party may move to suppress evidence obtained on the grounds that the warrantless search and seizure was illegal or the search and seizure with a warrant was illegal because the warrant is facially insufficient, lacks the requisite probable cause for issuance, or was executed illegally.


author: Beasley, Presiding Judge.

text:
    A92A1635.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. v. FUNK et al.
    (439 SE2d 517)
    Decided November 17, 1993.

      Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Jo L. Meeks, Elizabeth E. Long, Susan B. Forsling, for appellants.

      Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, for appellees.
   Beasley, Presiding Judge.

This Court’s judgment in this case at 206 Ga. App. 868 (426 SE2d 623) (1992) has been reversed by the Supreme Court pursuant to its grant of certiorari. MARTA v. Funk, 263 Ga. 385 (435 SE2d 196) (1993). Consequently, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this Court. The judgment of the trial court entered on the jury’s verdict is reversed and the case is remanded for a new trial.

Judgment reversed and remanded with direction.

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


text:
    A93A2219.
    CITY OF LaGRANGE v. USAA INSURANCE COMPANY.
    (438 SE2d 137)
   Birdsong, Presiding Judge.

We granted this interlocutory appeal to determine whether the trial court erred in denying summary judgment to the City of LaGrange in this suit by USAA Insurance Company (USAA). USAA claims subrogation for damage to its insured’s house caused by a burst water main on October 3, 1990. USAA contends it complied with the provisions of OCGA § 36-33-5 by giving timely notice to the City’s insurer Gallagher Bassett Services, Inc.; or, that the City waived the statutory requirements for ante litem notice.

OCGA § 36-33-5 (a) and (b) provide that no party shall bring suit against a municipal corporation for injuries to person or property without first giving notice within six months of the event, “in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury.”

USAA’s employee Lois Ressler stated in affidavit that on February 6, 1991, she contacted the City of LaGrange and asked to speak to the department responsible for handling claims. She was referred to the City’s personnel department. Ressler asked a personnel department employee whom USAA should notify with respect to its claim; Ressler was informed that the City’s insurance was with Gallagher Bassett and was instructed to submit USAA’s claim to Gallagher Bassett in Atlanta. Rick Cofer of Gallagher Bassett instructed Ressler to send all paperwork to him, and to contact Gwen Nugent in the City’s personnel department and have Nugent report the loss. On February 7, 1991, Ressler sent Gallagher Bassett a letter which she says fully notified the City of LaGrange of the loss; according to Ressler, Gallagher Bassett on behalf of the City of LaGrange sent her a letter acknowledging her February 7 letter and “dictating” that Gallagher Bassett was claims administrator for the City and would be handling the claim. On February 21, 1991, Ressler told the City’s personnel department employee, Nugent, that USAA had a claim against the City; Nugent stated that if Ressler would send all support documents to her attention when USAA was ready to close its files, Nugent would send a report to Gallagher Bassett. After the six-month deadline for notice to the City, in June 1991, Ressler received a letter from Gallagher Bassett saying it was still awaiting USAA’s paperwork. On July 12, 1991, USAA concluded its loss adjustment and, on July 24, sent a letter to Walt Williams at the City of LaGrange Water Department. On August 13, 1991, USAA received a letter from Gallagher Bassett denying liability for the claim based on OCGA § 36-33-5. Held:

1. The evidence, viewed most favorably to USAA as the non-moving party on City of LaGrange’s motion for summary judgment (see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)), does not raise a genuine issue of material fact whether USAA complied with the notice provisions of OCGA § 36-33-5; and the City of LaGrange is entitled to judgment as a matter of law.

It is undisputed that the only written timely notice of USAA’s claim against the City was sent to the City’s insurance company. The City’s insurer or claims adjustor is not “the governing authority of the municipal corporation.” OCGA § 36-33-5 (b). The mayor and the City Council are the governing authority of the City; only they can settle the claim. The insurer is not a “department” of the City, nor is it the “agent” of the “governing authority of the municipality.” The contract between the City and its insurer does not convert the insurer to the agent of the City for the purpose of ante litem notice required by OCGA § 36-33-5, for the insurer’s interests are not identical to the City’s interests, as the insurer may deny coverage on some basis having nothing to do with the City’s liability for damages to the claimant.

“Substantial compliance” satisfies OCGA § 36-33-5 (Jones v. City of Austell, 166 Ga. App. 808, 809 (305 SE2d 653)), the object being simply to give the City notice that a party has a grievance against it (Langley v. City Council of Augusta, 118 Ga. 590, 600 (45 SE 486)), but notice to the City’s insurer is not substantial compliance with the requirement of notice to the governing authority of the municipality. See Gillingwater v. City of Valdosta, 177 Ga. App. 241 (339 SE2d 287).

2. Timely written ante litem notice not having been presented to the governing authority of the City, USAA must rely entirely on its claim of “waiver” of notice by an official in the City’s personnel department.

Although a person may waive what the law has established in his favor if he does not injure others or affect the public interest, waiver of laws made for preservation of public order may not be abrogated by agreement. OCGA § 1-3-7. Where the public has an interest in a legal requirement, it may not be waived by the parties. Hilt v. Young, 116 Ga. 708 (43 SE 76). The statutory requirements for ante litem notice to the governing authority of the City generally may not be waived by the City or by an individual, even if that individual is the official directly responsible for the injury or for claims adjustment. To allow waiver by an individual of the legal requirements established for the benefit of the City completely obverts the statute and creates new issues and new dangers. What might be verbally agreed to by an individual in governing capacity may not be subject to proof if that individual becomes incapacitated or dies. The official might even deny having made a waiver. An individual may not verbally waive for the city what the law requires to be done in writing.

Moreover, “[a] governing authority cannot be estopped as the result of an ultra vires act on the part of one of its officers.” Gillingwater, supra at 241-242. In Holland v. City of Calhoun, 114 Ga. App. 51, 53 (150 SE2d 155), we held that because of the City Council’s dealings with the claimant, the City was estopped to deny that it had proper notice of the claim; but the Supreme Court reversed that decision and held that public officials could not act outside their powers, and that the City Council had “no right to waive the requirements of [OCGA § 36-33-5].” City of Calhoun v. Holland, 222 Ga. 817 (152 SE2d 752).

In City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 2 (421 SE2d 113), we found compliance with OCGA § 36-33-5, but we also found a waiver of its requirements because the official to whom notice was sent, the Assistant City Attorney in charge of the claims division, told the claimant to send the notice to him. Id. at 2. However, notice to the Assistant City Attorney in charge of the claims division was notice to the City, so the official did not in fact “waive” notice.

Decided November 17, 1993.

Lewis, Taylor & Lee, Jeffrey M. Todd, for appellant.

Swift, Currie, McGhee & Pliers, Frederick O. Ferrand, Kristine B. Morain, Cozen & O’Connor, Linda C. Hinson, for appellee.

No written notice having been presented to the governing authority of the municipality for adjustment as required by OCGA § 36-33-5, and as no waiver of notice may be claimed, the trial court’s denial of summary judgment to the City was error.

Judgment reversed.

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


text:
    A93A2273.
    FOSTER v. THE STATE.
    (437 SE2d 872)
   Birdsong, Presiding Judge.

Larry McDonald Foster appeals his conviction for shoplifting two videotapes at a K-Mart store.

Appellant asserts error in the denial of his plea in bar for lack of a speedy trial. He was arrested on June 26, 1991. In August 1991, the state court transferred the case to superior court on the basis that appellant had three prior shoplifting convictions. See OCGA § 16-8-14 (b) (1). In October 1991, the case was returned to state court because appellant had only two prior shoplifting convictions. No further action was taken until May 1993, when this accusation was filed. In June 1993, appellant filed this motion. Held:

1. The mere passage of time between arrest or indictment and trial does not constitute a denial of due process. Wooten v. State, 262 Ga. 876 (426 SE2d 852); Hughes v. State, 228 Ga. 593, 595 (187 SE2d 135). Under the standards in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) for determining a denial of due process for lack of speedy trial, appellant was not entitled to a dismissal of this charge.

The right to speedy trial is unique among constitutional rights because its deprivation can work to the advantage of the accused; failure to provide a speedy trial does not per se prejudice his ability to defend himself. State v. Lively, 155 Ga. App. 402, 403 (270 SE2d 812). The basis of the subjective balancing approach of Barker is that the defendant has some responsibility to assert a speedy trial claim even though it is the State’s duty to bring him to trial, and the defendant has a potential interest in either having a speedy trial or delaying any trial. Lively, supra at 404. There is no allegation of ineffective assistance of counsel here, so we can assume that appellant’s failure to demand a trial was beneficial to him. Washington v. State, 243 Ga. 329, 333 (253 SE2d 719). Appellant was not incarcerated between his 1991 arrest and this 1993 trial. He could have demanded a trial at any time but he did not. Evidently he did not want to push a trial. He contends the State’s failure to try him in two years caused him great anxiety and concern, but the anxiety and concern one would feel while waiting for trial of a criminal charge is not the sort of prejudice which will win him a dismissal. As to “prejudice” generally, see Andrews v. State, 175 Ga. App. 22, 25-26 (332 SE2d 299). Although appellant lived under a cloud of suspicion and anxiety for two years, he obviously preferred this to going to trial for it was in his power at any time to demand one. See Hall v. Hopper, 234 Ga. 625, 628 (216 SE2d 839), where the defendant was anxious for four years. The denial of the motion to dismiss and plea in bar was not error.

Decided November 17, 1993.

Rosemary E. Myers, for appellant.

Kenneth W. Mauldin, Solicitor, for appellee.

2. The trial court did not err in admitting the similar transaction evidence. The trial court held a hearing on the issue and made specific findings of relevance and competence of the evidence to show motive, plan, scheme, bent of mind and identity. Williams v. State, 261 Ga. 640 (409 SE2d 649). Probative similarities were shown in appellant’s modus operandi and in his conduct on being caught. That the other incidents involved other stores and other kinds of merchandise does not render them dissimilar to the shoplifting here, for to be admissible, the previous offense need not be identical to this one. Woolfolk v. State, 202 Ga. App. 59, 61 (413 SE2d 242).

Judgment affirmed.

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