author: Sognier, Judge.

text:
    77707.
    In the Interest of B. H.
    (378 SE2d 175)
   Sognier, Judge.

The Georgia Department of Human Resources, acting through the local Department of Family and Children’s Services (DFCS), filed a petition in the Juvenile Court of Jones County seeking temporary custody of B. H., alleging that the father had sexually abused the child, who was therefore a deprived child within the contemplation of OCGA § 15-11-2 (8). The juvenile court granted temporary custody to DFCS, and both parents bring this appeal.

The record reveals that at the hearing, Sheila Coleman, director of the day care center attended by B. H., testified that B. H., a two- and-one-half-year-old girl, described how her father had sexually molested her with his teeth and tongue. Shirley Hutchings, a caseworker with Jones County DFCS, testified that she spoke with B. H. at the day care center and B. H. repeated her allegation. Hutchings testified that B. H. told her her father had hurt her that way more than once, and that although Hutchings had asked her if anyone else had done this to her, B. H. insisted that only her father had done so. Hutchings stated that she confronted the mother with the child’s allegation, and the mother refused to believe that the father had molested the child. The father denied it, and the child thereafter would not repeat her allegations. Hutchings testified that she firmly believed the father had molested the child, and consequently could not allow the child to remain in the parental home unless the mother would give some indication that she believed the abuse occurred and agree to protect the child by removing the father from the home. The mother refused to do so, and the child was therefore placed with the maternal grandmother, where she remains.

In a psychological evaluation of B. H. by Dr. Donald Meek, which was read into the record by counsel for the parents, Dr. Meek stated that he could not get B. H. to talk about the alleged abuse, but that he administered the Sex Abuse Legitimacy Scale, which suggested that B. H.’s allegation had been somewhat fabricated.

DFCS then made an offer of proof consisting of the testimony of Diane Millions, a fourteen-year-old girl who allegedly had been raped by B. H.’s father. The court found this to be similar to the alleged act of abuse of B. H., and admitted the testimony over objection. Millions testified that her mother worked for an ambulance service in Wilkinson County for which B. H.’s father also worked. She testified that B. H.’s father, after offering to take her home, turned the car off the road onto an isolated dirt road where he forced her to perform sodomy on him and raped her.

The father denied he had raped Millions, but admitted he had been suspended from his job as an EMT and had been charged in Wilkinson County in relation to Millions’ allegation. The parents both denied any wrongdoing as to B. H., and Wayne Avery, the father’s uncle and a Macon Police Detective, testified that he had been at the home of the parents often, and had never seen any sign of deviant conduct on the part of the father. The parents made an offer of proof of testimony from the grandparents that the parents are of good character and that the father had never behaved inappropriately toward B. H. in their presence, which the court accepted as proven. Accepted as well was the fact that B. H. loved her father and wanted to go home.

The trial court found that B. H. was deprived, gave temporary custody to DFCS subject to the requirement that it report to the court in eight months, and found that it was in B. H.’s best interest that placement remain with the maternal grandmother.

1. Appellants first enumerate the general grounds, specifically contending there was no evidence on which the trial court could base an order depriving the mother of custody. We do not agree. The trial court found that there was “clear and convincing evidence that [the father] sexually abused [B. H.] as alleged in the petition,” that it would be contrary to the welfare of the child for her to be in the parental home, and that “reasonable efforts have been made to prevent or eliminate the need for removal and to make it possible for the child to return home.” Thus, the reason the mother was deprived of custody was her refusal to protect the child by even considering the possibility that the father could have abused the child and her consequent unwillingness to remove the child from the danger presented by living with the father. The juvenile court’s primary responsibility is to consider and protect the welfare of children whose well-being is threatened. OCGA § 15-11-1 (1). This is so regardless of specific fault on the part of the mother. See generally Gardner v. Lenon, 154 Ga. App. 748, 749-750 (270 SE2d 36) (1980). Accordingly, in this instance, after finding there was clear and convincing evidence the father had molested B. H., the trial court did not abuse its discretion by considering the evidence and deciding it had no choice but to protect the child by removing custody from the mother as well. See generally In re D. C., 176 Ga. App. 30 (335 SE2d 148) (1985).

2. Appellants next contend the trial court erred by admitting the hearsay testimony of Coleman and Hutchings about what B. H. told them, because it had no probative value and because B. H., although present, was not called by the court for a determination of her competency. We find no merit in this contention. OCGA § 24-3-16 provides that “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” By its terms, this statute allows the burden of proof to be satisfied under certain circumstances “by introducing the alleged victim’s hearsay declarations without putting the victim on the stand.” Sosebee v. State, 257 Ga. 298, 299 (357 SE2d 562) (1987). Thus, the hearsay was properly admitted provided the circumstances met the statutory criteria.

We find that the circumstances met those criteria. First, the statements made by B. H. to Coleman and Hutchings were clearly of the kind contemplated by the statute. Second, the court is required to have the victim testify only “at the request of either party,” id., and it is uncontroverted that although B. H. was available to testify, no request was made by either DFCS or appellants that she do so. Finally, there was evidence that it would be difficult for a child that age to fabricate such a story, and thus we cannot say the trial court erred by finding sufficient indicia of reliability. Accordingly, the trial court did not err by admitting the hearsay testimony of Coleman and Hutchings.

3. We find no merit in appellants’ assertion that the trial court erred by allowing Coleman to give the opinion that it would be difficult for a child the age of B. H. to make up a story about sexual abuse when Coleman had not been qualified as an expert. “ ‘Nothing more is required to entitle one to give testimony as an expert than that he [or she] has been educated in the particular trade or profession, although the special knowledge required to qualify as an expert may be derived from experience as well as study. [Cits.] . . ..’ [Cit.]” Patterson v. Lanham, 182 Ga. App. 343, 344-345 (2) (355 SE2d 738) (1987). Coleman testified that she had an Associate’s degree from Macon Tech, that she had participated in an internship program, and that she had worked for a day care center for three or four years. She stated she had been around other children and that she knew “the stages that they go through” and “what things are normal and what’s not normal.” We find no error in the trial court’s allowing Coleman to base her opinion on that foundation.

4. The record does not support appellants’ contention that the trial court erred by failing properly to consider the report of Dr. Meek. In its order, the trial court briefly summarized the report but also stated that it had reviewed the deposition of Dr. Meek, and that “[t]he validity of the tests administered [by Dr. Meek] to both parent and child [had been] eroded as [Dr. Meek] was made aware of the surrounding facts.” The trial court reasoned that Dr. Meek “was operating on, I think, one level of knowledge and, hopefully, I’m operating on a little higher level of knowledge. I had the benefit of testimony by other people. [I h]ad the benefit of seeing the people who did actually testify in this case and applying my own view as to whether or not they were telling the truth, simply by their demeanor and the content of what they said; how they said it.” It is thus obvious that the trial court did give thoughtful consideration to Dr. Meek’s report, but nevertheless found clear and convincing evidence that B. H. had been abused by her father.

5. Appellants maintain the trial court erred by allowing into evidence testimony regarding other alleged sexual misconduct by the father. “The general rule is that . . . evidence which in any manner shows or tends to show that the accused has committed other criminal acts is irrelevant and inadmissible as it tends to place the accused’s character into evidence. [Cits.] However, there are exceptions to the ‘other crimes’ rule where there is sufficient logical connection between the independent crime and the offense charged so that it can be said that proof of the former tends to prove the latter. [Cits.] These exceptions to the general rule ‘have been liberally extended in cases of sexual crimes. [Cit.]’ [Cits.]” Perry v. State, 158 Ga. App. 349, 352 (280 SE2d 390) (1981). Since that is true in criminal trials, where the rights of the accused are carefully protected, it is more logically so in a deprivation proceeding, where the paramount consideration is the welfare of the child. See generally OCGA § 15-11-1 (1). In this case, we cannot say that the trial court erred by determining that the fact that the father was awaiting trial on a charge accusing him of a sexual offense against an underage girl was sufficiently similar to the alleged abuse of his own daughter as to have some bearing on the instant case, at least as to the father’s bent of mind or course of conduct. See generally Watson v. State, 180 Ga. App. 82, 84 (1) (348 SE2d 557) (1986).

Decided January 31, 1989.

Arthur L. Phillips, for appellant.

Philip B. Spivey, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

6. Appellants finally contend the trial court erred by allowing DFCS to attempt to discredit Dr. Meek’s report, since Dr. Meek was chosen by DFCS and was, therefore, its own witness. We find no merit in this contention because DFCS did not voluntarily introduce the report, and thus appellants’ reliance on OCGA § 24-9-81, which provides that a party may not impeach a witness voluntarily called by him, is misplaced here.

Judgment affirmed.

Deen, P. J., concurs. Carley, C. J., concurs in the judgment only.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    77463.
    SCOTT v. ALLSTATE INSURANCE COMPANY.
    (378 SE2d 332)
   Banke, Presiding Judge.

Appellant Elunda Scott filed the present action against one Rodney Bernard Jackson to recover for injuries she had sustained in an automobile accident. She caused the appellee, Allstate Insurance Company, to be served as an uninsured motorist coverage carrier. The policy of insurance under which the appellant claims coverage was issued to her grandfather. Concluding that the appellant was not a “resident relative” of her grandfather’s household at the time of the accident so as to qualify as an insured within the contemplation of the policy, the trial court granted Allstate’s motion for summary judgment. See generally OCGA § 33-7-11 (b) (1) (B). This appeal followed. Held:

1. The appellant’s testimony regarding her living arrangements was contradictory. During her deposition, she initially testified that she was living in a rooming house at the time of the accident and that she had moved into her grandfather’s residence afterwards. However, she later indicated that she had moved “back home” approximately six months prior to the accident. In an affidavit submitted in opposition to Allstate’s summary judgment motion, she likewise averred that she had been living in her grandfather’s home on the date of the accident. However, at no time did she offer an explanation for the contradiction in her testimony. Under these circumstances, the trial court was authorized to reject the favorable portion of her testimony and to rely on the portion which was unfavorable to her. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986); Butler v. John Doe, 180 Ga. App. 313 (349 SE2d 34) (1986).

Decided January 5, 1989

Rehearing denied February 1, 1989.

Kane & Anderson, Daniel B. Kane, for appellant.

Chambers, Mabry, McClelland & Brooks, Eugene P. Chambers, Jr., Stefan E. Ritter, for appellee.

2. The appellant also relies on certain deposition testimony offered by her grandfather to the effect that she was a resident of his household at the time of the accident. The deposition in question was not included in the record transmitted to this court. However, in their briefs on appeal both parties acknowledge the existence and contents of this deposition, referring to it by page number. Thus, the possibility suggests itself that this deposition may have been before the trial court at the time the motion for summary judgment was ruled on. Therefore, by virtue of the discretion vested in this court by OCGA § 5-6-48 (d), we have requested and obtained supplementation of the record on appeal by the inclusion of the grandfather’s deposition. See State v. Pike, 253 Ga. 304 (320 SE2d 355) (1984); Consolidated Govt. &c. v. Williams, 184 Ga. App. 815, 817 (363 SE2d 20) (1987). Having reviewed the testimony in question, we conclude that it would be sufficient to create a material question of fact as to whether the appellant was a resident of her grandfather’s household at the time of the accident, so as to qualify her as an insured within the contemplation of the policy. We accordingly vacate the judgment of the trial court and remand the case for clarification as to whether this deposition was in fact before the court at the time the motion for summary judgment was ruled on. If it was not, then the grant of summary judgment was authorized. However, if it was, then the motion should have been denied.

Judgment vacated and case remanded with direction.

Birdsong and Beasley, JJ., concur.


author: Benham, Judge.

text:
    77714.
    BLACK v. THE STATE.
    (378 SE2d 342)
   Benham, Judge.

Appellant was convicted of possession of cocaine with intent to distribute. Two police officers testified that a “concerned citizen” approached them while they were on patrol at a certain intersection, told them she knew of someone selling drugs, and described the man to them. Later that night, the officers returned to the same intersection, where they observed appellant and three other men. Appellant, the only man who matched the description given by the informant, had a cap in his right hand and was looking in a plastic bag he held in his left hand. The officers saw appellant put the plastic bag under the cap behind him. The officers approached the foursome, arrested appellant, found over $1,100 on his person, and discovered that the plastic bag contained 31 smaller packets of white powder which a crime lab expert identified as cocaine.

1. Appellant contends that the State repeatedly introduced prejudicial, inadmissible hearsay. Appellant focuses his attention on the officers’ testimony about the information given them by the unidentified informant. The State argued that the testimony was admissible to explain the officers’ subsequent conduct.

“When, in a legal investigation, the conduct and motives of the actor are matters concerning which the truth must be found . . ., then information . . . known to the actor [is] admissible to explain the actor’s conduct. [Cits.] But where the conduct and motives of the actor are not matters concerning which the truth must be found . . ., then the information, etc., on which he or she acted shall not be admissible under [OCGA § 24-3-2].” Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982). “[0]nly in rare instances will the ‘conduct’ of an investigating officer need to be ‘explained’; as in practically every case, the motive, intent, or state of mind of such an officer will not be ‘matters concerning which the truth must be found.’ At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something.” Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984).

This case does not fall into the “most unusual” category. The issue was whether appellant possessed cocaine with the intent to distribute it. Why the police officers decided to focus on appellant at a certain time at a certain street corner was not an issue during this phase of the prosecution, and the admission of the statements explaining the officers’ conduct was erroneous. Berry v. State, 254 Ga. 101 (2) (326 SE2d 748) (1985). However, in light of the officers’ testimony that they saw appellant in sole possession of the plastic bag containing cocaine, it is “more than highly probable that its admission did not contribute to the verdict. [Cit.]” Teague v. State, supra, Division 2.

Decided January 18, 1989

Rehearing denied February 1, 1989.

Howard, Secret & Jones, James W. Howard, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Charles W. Smegal, Assistant District Attorneys, for appellee.

2. When asked the name of the informant by the assistant district attorney, one police officer refused because “the person lives in the area” and the officer believed appellant knew the person. Appellant’s trial counsel sought a mistrial on the ground that appellant’s character had been improperly placed in evidence. The trial judge denied the motion after stating his belief that the officer’s remarks did not necessarily impugn appellant’s character and warning the assistant district attorney that this was “the kind of thing you don’t want to be fooling around with. It doesn’t show anything. It doesn’t prove anything.”

The decision to grant or deny a mistrial is one within the sound discretion of the trial court, whose decision will not be disturbed on appeal unless there has been a manifest abuse of that discretion and a mistrial is essential to preserve a defendant’s right to a fair trial. Edge v. State, 178 Ga. App. 717 (344 SE2d 517) (1986). We do not find an abuse of discretion present in the case at bar.

3. In an amended motion for new trial, filed on June 24, 1988, by counsel other than appellant’s trial counsel, appellant asserted that his trial counsel had been ineffective. While appellant did not request an evidentiary hearing on the issue, he argued the motion by filing a brief. In an order filed July 29, 1988, the trial court summarily denied appellant’s motion for new trial.

The facts of this case pertinent to the issue of effective assistance of counsel are similar to those in Dawson v. State, 186 Ga. App. 718 (6) (368 SE2d 367) (1988), remanded with direction in Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). In light of the Supreme Court’s holding in Dawson, we are compelled to remand the case to the trial court for a hearing as to the effectiveness of appellant’s trial counsel. “As this concludes the present appeal, in order to prompt an appellate review of some future order entered by the trial court, a new notice of appeal must be filed.” Lemarr v. State, 188 Ga. App. 352 (2) (373 SE2d 58) (1988).

Judgment affirmed and case remanded with direction.

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


author: Pope, Judge.

text:
    77136.
    McGARITY v. THE STATE.
    (378 SE2d 179)
   Pope, Judge.

Defendant Mark McGarity appeals from his convictions for the offenses of kidnapping, armed robbery and possession of a firearm during the commission of a felony.

1. Defendant first contends that the trial court erred by allowing a juror to question the prosecutor during the State’s closing argument and by instructing the jury that this practice was permissible.

The record shows that the State was using a photograph of the crime scene during closing argument and a juror asked “Where is the entrance to the Sandwich Shop?” and “Where was he parked?” Before a response could be made defense counsel interjected “I don’t think they are supposed to be talking during closing argument.” The trial court responded “A juror can ask questions, but the argument must be based on the evidence. The lawyer is not a witness, and they are not allowed to testify. . . . But the lawyer can argue from the evidence, and if the evidence shows where the entrance is, they can point it out. There is no prohibition against a juror asking a question.”

We agree that under the facts here no reversible error occurred. At the outset we note that the ground urged on appeal, to wit, that the exchange violated the prohibition against jurors interrogating witnesses, (see, e.g., Hall v. State, 241 Ga. 252 (4) (244 SE2d 833) (1978); Stinson v. State, 151 Ga. App. 533 (1) (260 SE2d 407) (1979)), was not urged below. “ ‘A ground not raised by objection at trial cannot be raised for the first time on appeal. (Cit.)’ Williams v. State, 178 Ga. App. 216, 217 (2) (342 SE2d 703) (1986).” Collins v. State, 183 Ga. App. 243, 244 (4) (358 SE2d 876) (1987). Moreover, as the trial court noted, the prosecutor is not a witness and his argument to the jury is not evidence but rather must be based on the evidence. The record shows that when the State resumed its argument, the prosecutor did not attempt to “testify” but merely continued to explain the photograph of the scene, in light of the testimony previously given at trial, including that of the defendant. Lastly, although they are not allowed to interrogate witnesses directly, jurors do have a right to ask questions, and the trial court did not err by so stating. Pierce v. State, 158 Ga. App. 343 (1) (280 SE2d 381) (1981); Story v. State, 157 Ga. App. 490 (278 SE2d 97) (1981). In view of the circumstances here, and considering the innocuous nature of the questions posed, we find no reversible error. See generally Reed v. State, 249 Ga. 52 (1) (287 SE2d 205) (1982).

Decided February 1, 1989.

Mitchell Rodriguez, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Constance C. Russell, Assistant District Attorneys, for appellee.

2. Defendant next contends that the trial court erred by commenting on the evidence thereby impermissibly intimating an opinion in violation of OCGA § 17-8-57. Our review of the record does not support this contention. Instead the record shows that the exchange was precipitated by the court’s concern over defense counsel’s use of a police report in questioning the officer who made the report and that the court was attempting to assist counsel by explaining the proper way to use the report to impeach the testimony of the officer. When the court finished its explanation, counsel thanked the court and then added that he believed the report could also be used to explain the officer’s conduct. The court indicated that was a separate issue and counsel responded “Okay. I’ll follow your suggestion.”

“We will first note that counsel agreed with and acquiesced in the ruling of the trial court. ... No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives) him of the right to complain further. [Cits.]” Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536) (1986). See also Riley v. State, 180 Ga. App. 409 (1) (349 SE2d 274) (1986). Moreover, “ ‘[t]he statutory inhibition . . . ([OCGA] § 17-8-57) against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence. (Cits.)’ ” Lobdell v. State, 256 Ga. 769, 774 (353 SE2d 799) (1987). Accord Russell v. State, 184 Ga. App. 657 (2) (362 SE2d 392) (1987). Consequently, this enumeration is without merit.

3. Lastly, defendant contends that the trial court invaded the province of the jury by instructing the jury that if they could not reach a unanimous verdict, he would be required to declare a mistrial. The charge as given was a correct statement of the law and provides no ground for reversal. Cunningham v. State, 255 Ga. 35, 37 (3) (334 SE2d 656) (1985).

Judgment affirmed.

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


text:
    77270.
    CARSNER v. THE STATE.
    (378 SE2d 181)
   Pope, Judge.

Defendant Ted Lewis Carsner appeals from his convictions and sentences for the offenses of kidnapping and aggravated assault. On appeal he argues that the trial court impermissibly limited his right of cross-examination in that it did not allow him to ask a witness for the State certain questions concerning the effect of alcohol and a prescription anti-depressant on the defendant’s ability to distinguish between right and wrong and on the defendant’s ability to form the necessary intent to commit the crime.

The State’s witness, Dr. Marilyn Campbell, a psychological forensic specialist, testified defendant knew the difference between right and wrong and was not insane at the time of the incidents forming the charges on which he was tried. Dr. Campbell’s testimony was based, inter alia, on defendant’s description of the events of that day, including the fact that defendant had ingested both intoxicating liquors and a prescription anti-depressant medication.

On cross-examination defense counsel continued to question Dr. Campbell on the effect of alcohol and drugs on the mental state of the defendant. Dr. Campbell reiterated that defendant knew the difference between right and wrong. Dr. Campbell further stated, “A person who is intoxicated, whether it’s from alcohol or alcohol and pills, is not insane.”

Defendant then attempted to question Dr. Campbell on the effect of alcohol and drugs on the defendant’s ability to form the intent to commit the crimes charged. The trial court disallowed the questioning and stated to counsel that voluntary intoxication is not a defense to a crime.

“OCGA § 16-3-4 limits the reach of OCGA § 16-3-2 so that the inability to distinguish between right and wrong is not a defense if the inability is a consequence of voluntary intoxication (but remains a defense if the inability is a consequence of involuntary intoxication.) Neither code section speaks of an inability to form an intent to commit the act. Persons are not excused from criminal liability under either of these code sections because they are incapable of forming criminal intent. . . . Lack of intent is a defense, but it is not implicated by either OCGA § 16-3-2 or OCGA § 16-3-4.” Foster v. State, 258 Ga. 736, 744 (374 SE2d 188) (1988).

Whether or not one has the requisite intent to commit a crime is a question for the jury. We have previously held that “[m]ere presence, where one is in a comatose condition or otherwise completely unaware of what was going on, is what is meant by being so intoxicated at the time that [a defendant] could not form the requisite intent. . . .” Butler v. State, 161 Ga. App. 251, 253 (288 SE2d 306) (1982). Although evidence that defendant was unconscious or comatose, for whatever reason, would be relevant to the issue of intent, such was not the case here. Consequently, under the facts of the case at bar, the trial court did not impermissibly restrict defense counsel’s cross-examination of the State’s witness.

Decided February 1, 1989.

Smalley, Cogburn & Flynt, Thomas E. Baynham III, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Pope, Judge,

text:
    77556.
    NELSON v. THE STATE.
    (378 SE2d 186)
   McMurray, Presiding Judge.

Defendant Nelson appeals his conviction of the offense of aggravated assault. Held:

The charge against defendant Nelson arose from a prison altercation. Defendant Nelson, along with Smith, the victim, and Martinez, a co-defendant who was also convicted of aggravated assault, were inmates at the Georgia State Prison in Reidsville.

At trial, Smith testified that Martinez ran up behind him and stabbed him repeatedly. Smith also testified that while Martinez was stabbing him, defendant Nelson had grabbed him and held him, preventing him from escaping or defending himself.

Subsequently, the defense attempted to impeach Smith by proof of his general bad character. While the defense proceeded according to the requirements of OCGA § 24-9-84, the trial court sustained the State’s objection to the impeachment attempt. “[A]ny witness, other than an accused, may be discredited by evidence of bad character. . . .” Beasley v. State, 168 Ga. App. 255, 256 (1) (308 SE2d 560). It was error to exclude the testimony at issue. Dent v. State, 14 Ga. App. 269 (4) (80 SE 548). See Martinez v. State, 189 Ga. App. 69 (375 SE2d 123).

Judgment reversed.

Benham, J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

I write to express my complete disapproval of the idea that it is proper to use the method of impeachment allowed by OCGA § 24-9-84 in a situation in which the “community” in which the reputation of bad character is formed is that of a prison housing convicted felons. I do not dissent simply because a separate panel of this court has already reversed the conviction of the co-defendant of appellant (see Martinez v. State, 189 Ga. App. 69 (375 SE2d 123) (1988)), and the record shows that the trial judge considered appellant the less culpable of the two men.

Decided February 1, 1989.

Joel E. Williams, Jr., for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.

Showing bad character by the method set out in OCGA § 24-9-84 necessarily presupposes a community which values the truth and naturally would note the deviation from the community standard in a member of the community who persisted in not telling the truth. A prison population composed of felons does not meet that standard. The law allows those convicted of felonies and other crimes involving moral turpitude to be impeached by proof of conviction. Perry v. State, 173 Ga. App. 541 (4) (327 SE2d 527) (1985). This is bas.ed upon a belief that people who commit such crimes have set themselves so far from the accepted behavior of society that they are unworthy of belief. Thus, it adds nothing to the search for truth to have one felon say of another “His reputation for veracity is bad.” The rules of evidence are formulated to find the truth in the crucible of trial. Each rule must be evaluated in that light. Rote application of OCGA § 24-9-84 in these circumstances adds nothing to that search.


author: Carley, Judge.

text:
    77558.
    WASHINGTON v. THE STATE.
    (378 SE2d 381)
   Carley, Judge.

Appellant was tried before a jury on a two-count indictment. Count One alleged, in relevant part, that appellant “did unlawfully and with malice aforethought cause the death of [the victim], a human being, by blows to the head. . . .” Count Two alleged, in relevant part, that appellant “did, while in the commission of a felony, to wit: Aggravated Assault, cause the death of [the victim], a human being by beating said human being about the head. ...” The trial court, without request, charged on aggravated assault with a deadly weapon as a lesser included offense. The jury returned a verdict of guilty of aggravated assault. After the denial of his motion for new trial, appellant filed this appeal from the judgment of conviction and sentence entered on the jury’s verdict of guilty.

Appellant’s sole enumeration of error is that “[a]s the indictment failed to charge a necessary element of the offense of aggravated assault, the offense of which appellant was found guilty was not [a] lesser included [offense] of the offense charged.” It is unclear from this enumeration exactly how it is that appellant contends the trial court erred. The record shows that appellant filed neither a pre-trial demurrer to the indictment nor a post-judgment motion in arrest of the judgment of conviction. Compare Phillips v. State, 240 Ga. 453 (241 SE2d 203) (1978); Rushin v. State, 180 Ga. App. 276 (1) (348 SE2d 910) (1986); Ponder v. State, 121 Ga. App. 788 (175 SE2d 55) (1970); Martin v. State, 96 Ga. App. 557, 558 (1) (100 SE2d 645) (1957). Accordingly, appellant’s contention presumably is that it was error for the trial court to charge on aggravated assault with a deadly weapon as a lesser included offense of malice or felony murder.

“The trial judge . . . may, of his own volition and in his discretion, charge on a lesser crime of that included in the indictment or accusation.” State v. Stonaker, 236 Ga. 1, 2 (2) (222 SE2d 354) (1976). “ ‘The general rule concerning lesser included offenses appears to be: “To warrant conviction of a lesser offense on an indictment or information charging a greater offense, it is essential that the allegations describing the greater offense contain all essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser.” ’ [Cit.]” (Emphasis supplied.) Tuggle v. State, 145 Ga. App. 603 (1) (244 SE2d 131) (1978). In the present case, it is clear that the crime of aggravated assault was “necessarily” a lesser included offense at least as to the felony murder count. That count of the indictment specifically alleged that appellant’s commission of an “aggravated assault” against the victim by “beating [him] about the head” was the underlying felony. Accordingly, the greater offense of felony murder “necessarily” included the offense of aggravated assault. See Atkins v. Hopper, 234 Ga. 330, 333 (3) (216 SE2d 89) (1975). Compare Anderson v. State, 170 Ga. App. 634 (317 SE2d 877) (1984) (simple battery not necessarily a lesser included offense in the crime of aggravated assault); Porter v. State, 163 Ga. App. 511, 512 (1) (295 SE2d 179) (1982) (criminal interference with governmental property not necessarily a lesser included offense in the crime of criminal damage to property); Tuggle v. State, supra (simple battery not necessarily a lesser included offense in the crime of aggravated assault). If appellant wished to contest the sufficiency of the indictment’s allegations concerning his commission of the underlying aggravated assault against the victim, he could have filed a pre-trial demurrer. See Phillips v. State, supra; Rushin v. State, supra; Martin v. State, supra. As noted, however. he did not do so.

Decided February 1, 1989.

Kenneth D. Kondritzer, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

The evidence clearly authorized a finding that appellant had beaten the victim about the head with either a rock or with his fists and, thus, had committed an aggravated assault with a deadly weapon. See Harper v. State, 152 Ga. App. 689, 691 (2) (263 SE2d 547) (1979). It follows that the trial court correctly charged on aggravated assault with a deadly weapon as a lesser included offense of murder. See generally Hall v. State, 163 Ga. App. 515 (1) (295 SE2d 194) (1982).

Judgment affirmed.

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


author: Carley, Chief Judge.

text:
    77612.
    ARCHIE v. SCOTT et al.
    (378 SE2d 182)
   Carley, Chief Judge.

On May 29, 1986, appellant-plaintiff filed a medical malpractice action against appellee-defendants. Appellees answered, denying the material allegations of the complaint, and they subsequently filed a motion for summary judgment. However, appellant voluntarily dismissed his complaint without prejudice on January 30, 1987.

On July 21, 1987, appellant refiled his complaint and, because the statute of limitations had run, he invoked the renewal provisions of OCGA § 9-2-61. In the interim between the voluntary dismissal of appellant’s original action and the commencement of his renewal action, the General Assembly enacted OCGA §. 9-11-9.1, which had become effective on July 1, 1987. Because the six-month renewal period would expire within ten days of the refiling of the action and because he had alleged in his refiled complaint that the affidavit of an expert could not be obtained due to time restraints, appellant was afforded an additional 45 days within which to supplement his pleadings with the requisite affidavit. See OCGA § 9-11-9.1 (b). Upon determining that he would not be able to obtain an affidavit within that 45-day period, appellant filed a motion for an extension of time. See OCGA § 9-11-9.1 (b). The trial court denied appellant’s motion for an extension. After the expiration of the 45-day period, appellees filed motions to dismiss based upon appellant’s failure to comply with OCGA § 9-11-9.1 (b). After conducting a hearing, the trial court granted appellees’ motions. Appellant appeals from the order dismissing his action for the failure to comply with the requirements of OCGA § 9-11-9.1.

1. In several enumerations, appellant attacks the constitutionality of OCGA § 9-11-9.1. “A constitutional question is within [the Supreme] [C]ourt’s jurisdiction if it involves ... an attack upon the constitutionality of some law of this state. . . . [Cit.]” Zepp v. Mayor & Council of Athens, 255 Ga. 449, 451 (2) (339 SE2d 576) (1986). However, “[i]t clearly is the law of this state that the Supreme Court is not required to and ‘will never pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge. [Cits.]’ [Cits.]” Philyaw v. Fulton Nat. Bank, 139 Ga. App. 28, 29 (1) (227 SE2d 811) (1976). Accordingly, it is only if the constitutionality of OCGA § 9-11-9.1 was challenged in the trial court that it would be proper to transfer this case to the Supreme Court. A review of the record shows that no such challenge was made in this case. Therefore, the enumerations which attack the constitutionality of the statute present nothing for review by any appellate court and jurisdiction over the remaining enumerations of error is in this court.

2. Appellant enumerates the trial court’s order as erroneous for the reason that OCGA § 9-11-9.1 is not applicable to this case. He urges that a renewal action is but a continuance of the original action and, thus, is to be governed by the procedural rules which were in effect at the time that the original action was filed.

It is clear, however, that “an action renewed pursuant to OCGA § 9-2-61 (a) is an action de novo,” not a continuance of the original action. (Emphasis in original.) Adams v. Gluckman, 183 Ga. App. 666 (1) (359 SE2d 710) (1987). “The same cause may be renewed, recommenced, or brought over, but is in effect de novo, except that the statute of limitation does not run, provided it is brought within six months from the time of the dismissal. [Cit.]” (Emphasis in original.) Hornsby v. Hancock, 165 Ga. App. 543, 544 (301 SE2d 900) (1983). See also Stevens v. FAA’s Florist, 169 Ga. App. 189 (311 SE2d 856) (1983). Accordingly, a renewal action is governed by those procedural rules which are in effect at the time that it is filed. See generally St. Joseph’s Hosp. v. Nease, 189 Ga. App. 239 (375 SE2d 241) (1988). “ ‘ “No person can claim a vested right in any particular mode of procedure for the enforcement or defen[s]e of his rights. . . .” ’ ” Hart v. Owens-Ill., 161 Ga. App. 831, 834 (289 SE2d 844) (1982). See also Berry v. Siskin, 128 Ga. App. 3 (2) (195 SE2d 255) (1973). Compare Polito v. Holland, 258 Ga. 54 (3) (365 SE2d 273) (1988). It follows that OCGA § 9-11-9.1 is the applicable procedure which governs the instant renewal action and that the trial court did not err in so holding.

3. Appellant enumerates as an erroneous abuse of discretion the trial court’s refusal to grant his motion for an extension of time within which to file the requisite affidavit.

Decided February 1, 1989.

Repasky, Minin & Bates, Alexander J. Repasky, Michael R. Goldberg, for appellant.

Stephen M. Forte, Michael G. Frick, Jennie E. Rogers, for appellees.

OCGA § 9-11-9.1 (b) provides, in pertinent part, that “[t]he trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires.” Subsequent to his treatment by appellees, appellant had undergone surgery in Germany and, in his motion, appellant alleged that, because he had not had sufficient time to have his medical records of that surgery, which were in German, translated, he had been unable to submit those records to an expert for evaluation. “We will not substitute our judgment for that of the trial court when there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion. [Cits.]. . . Where the trial court hears evidence, considers briefs and arguments and thereafter in the exercise of its discretion renders a judgment on a motion, in the absence of legal error, the sole question for determination is whether there is any evidence to authorize and support that exercise of discretion.” Cohutta Mills v. Bunch, 166 Ga. App. 395, 397 (304 SE2d 431) (1983). A review of the record shows tbat appellant and his attorneys had approximately two years within which to collect and translate the medical records from Germany. The evidence supports the trial court’s finding that appellant failed to show “good cause” for an extension of time and the denial of the motion for such an extension was not erroneous.

4. Since OCGA § 9-11-9.1 was applicable to this action and appellant failed to comply with its requirements within the time specified by the statute, the trial court correctly granted appellees’ motions to dismiss appellant’s complaint.

Judgment affirmed.

Been, P. J., and Sognier, J., concur.


text:
    A89A0129.
    RONSKOWSKY v. THE STATE.
    (378 SE2d 185)
   Banke, Presiding Judge.

Ronskowsky appeals his conviction of driving under the influence of alcohol. Held:

1. The appellant contends that the trial court erred in failing to exclude the testimony of a prosecution witness whose name had not been supplied to him prior to the commencement of trial. The record reveals that the appellant did not submit a written demand for a list of witnesses pursuant to OCGA § 17-7-110 but merely made a verbal request for such a list at the arraignment, at which time the existing list was provided to him. It was further shown, however, that the prosecution added a name to its witness list approximately five days prior to trial without notifying the appellant. When counsel for the appellant brought the matter to the court’s attention after learning of it during the voir dire proceedings, the court responded that he would be allowed ample opportunity to interview the witness; and, a recess was later called for that purpose.

Decided February 1, 1989.

Elliott A. Shoenthal, Brian W. Wertheim, for appellant.

Ralph T. Bowden, Jr., Solicitor, Cliff Howard, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.

To be binding under OCGA § 17-7-110, a demand for a list of witnesses must be made in writing. See Jackson v. State, 166 Ga. App. 252 (2) (305 SE2d 4) (1983). Moreover, even if a valid written demand has been filed, “when the trial court has allowed the defendant an opportunity to interview ‘unlisted’ witnesses, . . . the purpose of the statute has been satisfied. . . .” White v. State, 253 Ga. 106 (3) (317 SE2d 196) (1984). Accordingly, this enumeration of error is wholly without merit.

2. The appellant contends that the state failed to establish a proper foundation for the introduction of testimony regarding the results of an “alco-sensor” test which had been administered to him at the time of his arrest. We disagree. Prior to resting its case, the state introduced into evidence a document certifying that the device at issue had been approved for use in Georgia by the GBI’s Division of Forensic Sciences. In Turrentine v. State, 176 Ga. App. 145 (1) (335 SE2d 630) (1985), it was held that a proper foundation for the introduction of the results of an alco-sensor screening test is established by such evidence. It follows that the trial court did not err in admitting the results of the test.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0211.
    CARR v. GLASS et al.
    (378 SE2d 383)
   Banke, Presiding Judge.

The appellant received a distribution of 110 acres of his deceased father’s farmland by conveyance from the other heirs. Thereafter, the other heirs entered into a contract to sell the remaining 410 acres of the farm to Albert Glass, Jr., who then transferred the land to his father, Albert Glass, Sr. The appellant brought the present action against the Glasses, based on allegations that they had wrongfully refused to transfer to him the federal peanut crop allotment pertaining to the acreage they had acquired, in violation of an oral agreement between himself and Glass, Jr.

After Glass, Jr., had refused to execute the appropriate forms to effect transfer, the appellant had applied to the Dodge County Agriculture Stabilization Committee (ASC), seeking to have the farm’s entire crop allotment reallocated to his 110 acres. The county committee instead reallocated the total allotment on a proportional basis between the two parcels. When the appellant’s request for reconsideration of this decision was denied, he then appealed to the State ASC, which affirmed the county committee’s decision. He thereafter appealed to the Deputy Administrator of the United States Department of Agriculture, who sustained the county committee’s decision. The appellant then instituted the present action against the Glasses in the Superior Court of Dodge County, seeking to recover damages based on unjust enrichment. The Glasses denied liability and moved for summary judgment, contending that the trial court was without jurisdiction to entertain the lawsuit because the appellant had failed to follow the statutory requirements set forth at 7 USCA § 1363 for obtaining judicial review of allotment decisions. This appeal is from the grant of that motion. Held-.

Federal acreage allotments “are not ordinary intangible property subject to unrestricted alienation.” Conifer Farms v. Brent, 237 Ga. 42, 44 (226 SE2d 585) (1976). Rather, they can be transferred only through compliance with the procedural requirements specified in the Agricultural Adjustment Act, 7 USCA § 1281 et seq. Pursuant to 7 USCA § 1363, an adverse administrative determination on a farmer’s request for reallocation may be ¿ppealed to a review committee composed of three local farmers. An adverse decision by the review committee is in turn subject to judicial review pursuant to 7 USCA § 1365, which provides: “If the farmer is dissatisfied with the determination of the review committee, he may, within fifteen days after a notice of such determination is mailed to him by registered mail or by certified mail, file a bill in equity against the review committee as defendant in the United States District Court, or institute proceedings for review in any court of record of the state having general jurisdiction, sitting in the county or the district in which his farm is located, for the purpose of obtaining a review of such determination.” This remedy is exclusive, and “no court of the United States or of any state has jurisdiction to pass upon the legal validity of any determination of the committee except by the method of review provided.” Conifer Farms v. Brent, supra at 45. See also 7 USCA § 1367.

Decided February 1, 1989.

Harrison, Hicks & Hicks, John H. Hicks, for appellant.

Smith & Harrington, Will Ed Smith, for appellee.

Although the appellant does appear to have exhausted his administrative appeal rights within the Department of Agriculture, see 7 CFR § 780.1 et seq., he did not thereafter seek an appeal to the review committee in accordance with 7 USCA § 1365. It follows that the trial court was powerless to award the relief sought and accordingly did not err in granting the appellee’s motion for summary judgment. Accord Conifer Farms v. Brent, supra.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Deen, Presiding Judge.

text:
    77717.
    ANTON INTERNATIONAL CORPORATION v. WILLIAMS-RUSSELL & JOHNSON, INC. et al.
    (378 SE2d 688)
   Deen, Presiding Judge.

On July 15, 1985, the appellant, a company that recruits employees for engineering firms, entered an agreement with one of the appellees, Williams-Russell & Johnson, Inc., under which Williams-Russell agreed to pay the appellant a fee should it hire a person directly or indirectly through the appellant’s referral within one year of such referral. Subsequently, that appellee interviewed Vincent Sakraida, who had been referred by the appellant, but by October 1985 had decided against hiring him. In February 1986, however, it did employ Sakraida. The appellant discovered this employment in April 1986 and demanded payment of a commission under the agreement. The appellees refused, claiming that Sakraida’s employment resulted independently from the referral of a friend of Sakraida’s who worked for Williams-Russell.

The appellant subsequently commenced this action, and following the trial the jury awarded the appellant $9,300. The trial court had almost granted the appellees’ motion for directed verdict prior to submitting the case to the jury, and ultimately did enter judgment for the appellees notwithstanding the verdict. Held:

Regardless of whether or not a reasonable deduction may be drawn that Sakraida’s eventual employment by Williams-Russell resulted from the appellant’s referral, the trial court probably granted judgment for the appellees notwithstanding the verdict because the appellant failed to prove its damages. Under the contract, the appellant’s commission would be a percentage of the job referral’s salary. Despite the appearance of Williams-RusselPs personnel director as a witness at the trial, the appellant did not elicit any testimony concerning Sakraida’s salary. The only purported evidence submitted on this point was a figure of $30,000 indicated on a placement statement and invoice submitted by the appellant to the appellees, requesting payment of the commission. It is uncontroverted that the appellant verbally obtained this salary figure during a telephone contact with Sakraida.

Decided January 3, 1989.

Richard M. Skelly, for appellant.

Marvin S. Arrington, Alfred J. Turk III, Carlton R. Stewart, for appellees.

This documentary material was admitted into evidence as business records under OCGA § 24-3-14. The indication of Sakraida’s salary, derived solely from Sakraida’s out-of-court statement, was hearsay, and hearsay which is a part of a business record generally is inadmissible. Emmett v. State, 232 Ga. 110 (6) (205 SE2d 231) (1974); Coastal Health Svcs. v. Rozier, 176 Ga. App. 240 (3) (335 SE2d 712) (1985). The appellees did not object to the admission of these business records in this case, but the hearsay information regarding Sakraida’s salary has no probative value and cannot support a verdict. Jeweler’s Fin. Svcs. v. Chapes, Ltd., 181 Ga. App. 872 (3) (354 SE2d 200) (1987). The appellant having failed to prove its damages, judgment for the appellees notwithstanding the verdict was proper.

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    77334.
    AILION et al. v. WADE et al.
    (378 SE2d 507)
   Birdsong, Judge.

This is an appeal from the judgment entered following the jury’s verdict in favor of appellees/defendants.

This case originally was tried before a jury in the Superior Court of Fayette County. The jury returned a verdict in favor of the appellants/plaintiffs on their original complaint, and against the appellees/ defendants on their counterclaim. Appellees’ motion for new trial was granted.

Appellants owned the Hello World Travel Service (HWTS), which they contracted to sell to the appellees. Appellants subsequently commenced suit alleging breach of contract by the appellees, and also praying for damages and certain other relief not pertinent to the disposition of this appeal. At the time the sales contract was entered, it was required by the Air Traffic Conference (ATC) that the transfer of ownership of a travel agency’s “ATC Passenger Sales Agency Agreement” could be accomplished only with the approval of its administrator. Breach of this provision or the possession of ATC documents by a new owner without prior ATC approval could be considered as grounds for the immediate removal of all traffic documents and airline plates from the offending travel agency. Also ATC required that a travel agency at all times have employed a qualified manager and at least one person who could meet the qualifications as a ticket “qualifier.” Shortly after appellees signed the sales contract and before ownership transfer was approved by the ATC, the agency lost all of its ticket “qualifier” personnel.

Appellants maintain that the appellees did not timely act to hire a new ticket “qualifier” and that appellee James Wade thereafter informed ATC that the approval of the ownership transfer could not be accomplished as allegedly scheduled due to this fact. Appellants also assert that after being served with notice of litigation, the Wades abandoned the travel agency premises. Appellants further claim that appellees breached the sales contract by putting the “collateral in jeopardy,” primarily by not timely hiring the “qualifier.” Moreover, appellants assert that the ATC ultimately removed the ticket stock and plates from the agency because appellees had informed them prematurely that the agency did not have a “qualifier” in its employment.

Appellees dispute the above assertions. They maintain that they were reasonably acting to obtain the services of a “qualifier,” and that under the sales contract terms, their 120-day grace period had not yet expired. Appellee James Wade denied informing anyone at ATC that the Wades wanted out of their contract. He also testified that he did not solicit ATC to take the agency’s plates. The Wades deny that they abandoned the business, but assert that on the day ATC seized the ticket stock and plates that appellant Richard Ailion ordered them from the premises and demanded their door and mailbox key. Further, appellee James Wade asserts that when he was checking on the status of his ownership application, ATC raised a question about who was in control of the agency at that time, and that he informed them that the appellees were running the travel agency. Mr. Wade also at ATC’s request mailed them a copy of the sales contract. Mr. Wade also testified to, and Mr. Ailion denied, having a phone conversation among the two men and a lady from ATC. Mr. Wade asserts that, in this phone conversation, the ATC representative informed them that the ticket stock and plates were being removed because the travel agency was being run by appellees before ATC approval was obtained.

The sales contract, executed on February 7, 1984, pertinently provided that: “Purchaser [appellees] shall take possession of the Business ... on February 11, 1984; however, this sale shall be specifically contingent upon Purchaser receiving approval by . . . (ATC) for the change of ownership. ... In the event, Purchaser shall be denied approval by ATC or shall be approved by ATC within . . . (120) days from the date of this agreement then, Purchaser’s down payment and any monthly payments made by Purchaser shall be returned to Purchaser. . . . All earnings of the agency shall be held until approval by ATC shall be either granted or denied or . . . (120) days from the date of this agreement whichever shall first occur. ... In the event approval shall be denied or approval has not been obtained with[in] . . . (120) days stated above, all profits shall be the property of seller, ... all [said] monies paid by Purchaser hereunder shall be held in escrow until one of the preceding events has occurred in accordance with the provisions hereunder.”

On May 14, 1984, ATC seized the agency’s ticket stock and plates, and the appellees were, during this incident, served with legal process in a suit initiated by appellants. These events occurred before the expiration of 120 days after execution of the sales agreement. Held:

1. Appellees’ motion for imposition of penalties, pursuant to Court Rule 26 (b), is denied.

2. Appellees’ motion to dismiss appeal is denied. In the instant case, the jury returned a verdict for the defendants/appellees. On December 15, 1987, the trial court entered judgment on the verdict. A motion for new trial also was filed by plaintiffs/appellants on December 15, 1987. A rule nisi issued for a hearing on the motion for January 28, 1988. The hearing motion was continued to March 1, 1988. On March 4,1988, appellants requested permission to withdraw their motion for new trial. On that same date, the trial court entered a written order, to-wit: “Upon the specific written request of counsel for the plaintiffs, the Motion for New Trial regarding the above-referenced case is hereby withdrawn.” Notice of appeal was filed March 10, 1988.

OCGA § 5-6-38 (a) pertinently provides “[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial . . . has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” (Emphasis supplied.)

The facts of this case materially differ from Taylor v. State, 173 Ga. App. 745 (327 SE2d 860) wherein a defendant withdrew his motion for new trial but there was no written order of the court disposing of the motion. Expressly noting the lack of a court order either disposing of the motion or granting a time extension, this court in Taylor held that the appeal must be dismissed for failure to file timely notice of appeal.

The facts of this case also materially differ from Golden v. Credico, Inc., 124 Ga. App. 700 (185 SE2d 578), where the return of a motion for new trial was accomplished by a letter from the trial judge. This court in Golden refused to accept the letter as a proper order of the court, and ultimately concluded that the letter did not otherwise finally dispose of the case within the meaning of Code Ann. § 6-803 (now OCGA § 5-6-38).

We believe the procedure used by the trial court in this case in response to movant’s motion to withdraw constitutes a legitimate ex- ■ ercise of court power “otherwise finally disposing of the motion” within the meaning of OCGA § 5-6-38 (a). See generally OCGA §§ 1-3-1 (c), 5-6-30; 15-6-8. Hence, the unconditional withdrawal of the new trial motion, by filing of a written order of the court, states anew the running of. the statutory 30-day period of OCGA § 5-6-38 (a) in which appellant can timely file notice of appeal. In this case the order of withdrawal was filed on March 4, 1988, and the notice of appeal was filed on March 10, 1988. Thus, the notice of appeal was timely filed.

3. Appellant enumerates as error “[t]hat the [trial c]ourt erred in giving Defendants’ requested Charge No. 7, over Plaintiffs’ objection.” This enumeration of error is without merit as the record conclusively establishes that the trial court did not give the requested Charge No. 7, but rather instructed the court as hereinafter discussed.

Appellants attempt to expand the scope of its enumeration of error in its brief by contending that the trial court erred in giving the following charges to the court. “I charge you that a contract may also be absolute or conditional. In an absolute contract, every covenant between the parties is independent, and the breach of one does not relieve the obligation of the other. In a conditional contract, the covenants are dependent upon each other, and the breach of one is a release of the binding force of all the other dependent contracts. ... I charge you that the contract here in issue was a conditional contract, and if you find that the parties contracted breached a covenant upon which the other party’s duty to perform was conditioned, you are then authorized to find that the nonbreaching party is released from their duty to perform under the contract.” Appellant did not specifically object to these charges after the charges were given and before the verdict was announced. See generally Sims v. Johnson, 185 Ga. App. 720 (365 SE2d 532); Brown v. Sims, 174 Ga. App. 243, 244 (329 SE2d 523). Nor did any of the objections made at the precharge conference, and allegedly reserved thereafter, specifically pertain to these particular charges.

Defendants’ requested Charge No. 7 provides: “I charge you that if you find from the evidence that the Plaintiffs have failed to comply with a condition of the contract, and that their compliance with this condition was necessary and precedent to the Defendants’ obligation to give full contractual performance, a verdict for the Defendants would be proper. He who would enforce the performance of a contract must himself abide by its terms.” The above charges to the jury substantially differ from defendants’ requested Charge No. 7.

Decided February 2, 1989.

Murray M. Silver, for appellants.

J. Philip Hancock, John W. Lawson, for appellees.

It is well-established that “ ‘[a]n enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.’ [Cits.] . . . One cannot expand the scope of review or supply additional issues ‘through a process of switching, shifting, and “mending your hold.” ’ ” City of College Park v. Ga. Power Co., 188 Ga. App. 223-224 (372 SE2d 493). Accordingly, appellant has not preserved an issue on appeal regarding the giving of the above charges to the jury. Moreover, while we find that the charges given might not qualify as a model of legal draftsmanship, these charges are not so conflicting on their face as to be confusing to a jury to the point that it “cannot render an intelligible verdict.” Rizer v. Harris, 182 Ga. App. 31 (3) (354 SE2d 660). Nor would these charges, when examined on their four corners, affect the substantial rights of the appellants in this proceeding. We thus are satisfied that the giving of the above charges was not inconsistent with substantial justice, and that assuming but not deciding an error occurred it was harmless. OCGA § 9-11-61. See also OCGA § 13-1-7.

4. Appellant asserts that the weight of the evidence is contrary to the verdict. We disagree. The obligation to weigh the evidence and to determine witness credibility rests with the jury. “This court considers only the sufficiency of the evidence. . . .” Parr v. Pinson, 182 Ga. App. 707 (1) (356 SE2d 740). On appeal an appellate court is bound to construe the evidence in support of the verdict and judgment, and if there is some evidence to support the verdict, we will uphold the judgment. Locke v. Vonalt, 189 Ga. App. 783 (_SE2d_) (1989). Applying these principles to the case sub judice, we find ample support in the record for the jury’s verdict.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    77450.
    WHELCHEL v. THOMAS FORD TRACTOR, INC.
    (378 SE2d 510)
   Birdsong, Judge.

Appellant/plaintiff filed notice of direct appeal “from the Order denying Plaintiff’s Motion for New Trial.” His motion for new trial was based on the general grounds, and was subsequently amended to include assertions of error, by admitting over objection, evidence of collateral source and by charging the jury as to the collateral source rule of OCGA § 51-12-1 (b).

Appellant/plaintiff was injured in an accident while driving a tractor with a cutter, which had been sold and connected together by appellee several years earlier. The injury occurred on May 7, 1982; pursuant to OCGA § 9-2-61, suit was filed on November 1, 1985. The new collateral source rule of OCGA § 51-12-1 (b) became effective on July 1, 1987. Held:

1. Appellant asserts that the trial court erred in allowing the introduction of collateral source evidence and in subsequently charging the court as to the collateral source rule of OCGA § 51-12-1 (b).

The jury was informed of certain Social Security benefits and workers’ compensation received by the appellant as a result of injuries sustained in the accident. The charge of the court was as follows: “[Y]ou . . . have heard evidence . . . the plaintiff has compensation or other benefits available to him as a result of his injuries . . . you may consider such . . . compensation or benefits ... in making any award of damages, but you do not have to consider it.” (Emphasis supplied.)

The admission of collateral source evidence and the giving of the above charge were errors, as the collateral source rule of OCGA § 51-12-1 (b) cannot be given retroactive effect and operates prospectively only. Powell v. Stephens, 258 Ga. 149 (368 SE2d 518); Polito v. Holland, 258 Ga. 54 (365 SE2d 273). However, “[i]t is an old and sound rule that error to be reversible must be harmful. [Cit.] Appellant must show error which has hurt him.” Leverett v. Flint Fuel, 183 Ga. App. 75, 78 (3) (357 SE2d 882); see Jackson v. Kight & Sons, 159 Ga. 584 (3) (126 SE 379).

The above charge limited the jury’s discretionary consideration of the admitted collateral source evidence to the question of damages. It is well-settled that “the giving of a charge ... or in the admission or exclusion of evidence, which go only to the matters of damages or the measure of damages, are harmless and afford no ground for reversal where a verdict was returned in favor of the defendant.” Maloy v. Dixon, 127 Ga. App. 151, 156, n. 2 (193 SE2d 19), and cases therein cited; see Johnson v. Amerson, 179 Ga. App. 75 (2) (345 SE2d 94). Appellant, however, invites this court to speculate that the jury would ignore the limited purpose for which the collateral source evidence was admitted and would consider it in determining the question of liability. We will not engage in such unwarranted speculation regarding the conduct of the jury, as “[t]his court is a court for the correction of errors and its decision must be made on the record . . . and not upon the briefs of counsel.” Jenkins v. Bd. of Zoning, 122 Ga. App. 412 (2) (177 SE2d 204). This assertion of errors is without merit.

Decided February 2, 1989.

James M. Walters, for appellant.

Roland H. Stroberg, for appellee.

2. Appellant also asserts that the trial court erred in refusing to charge the jury on the theory of products liability. We find that the appellant has waived this issue.

In this case, the appellant objected, during the charge conference, to the trial court’s decision not to give the requested charge. Subsequently during the same charge conference, after objecting to a proposed charge on collateral source evidence, appellant openly acknowledged the requirement to “perfect the record after the court gives the charge.” However, after the charges were given to the jury, the appellant did not thereafter object to the trial court’s actual omission of the requested charge, notwithstanding inquiry by the trial court as to this matter. “ ‘An objection to an instruction which is made during a charge conference, but which is not made or reiterated following the giving of the charge, fails to preserve the matter for review by an appellate court. The requirement is that there be a proper objection after the court instructed the jury and before the jury returned a verdict. (A)n objection made only at a charge conference is insufficient to preserve an issue for appeal.’ ” Sims v. Johnson, 185 Ga. App. 720-721 (365 SE2d 532); Brown v. Sims, 174 Ga. App. 243, 244 (329 SE2d 523). Moreover, this rule applies equally to the giving of an erroneous charge and to the declination to give a charge.

3. Appellant’s other assertions of error are without merit, and there exists sufficient evidence of record to support the jury’s verdict.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    77547.
    MANNING v. AMERICAN HEALTH & LIFE INSURANCE COMPANY.
    (378 SE2d 512)
   Birdsong, Judge.

Appellant Manning was the husband of Pamela Ravan Manning when she died accidentally. He claimed, as her spouse, the proceeds ($5,000) of a policy of life insurance covering her, but the trial court awarded the proceeds to her previous husband, Burnett. Manning appeals. Held:

Decided February 2, 1989.

Clark & McLaughlin, Michael C. Clark, for appellant.

Harben & Hartley, Sam S. Harben, Jr., Charles S. Wynne, for appellee.

1. American Health & Life Insurance Company, having acknowledged and discharged its contract obligation by paying the proceeds into court registry, is dismissed.

2. The trial court clearly did not err in awarding insurance proceeds to the former spouse, Burnett.

This policy was applied for by Kenneth Burnett and his then-wife Pamela in 1979, to insure both their lives for benefit of each other. The application recites “Applicant and Owner Name: Burnett(,) Kenneth John,” and specifically recites detailed information personal to John Kenneth Burnett. Burnett signed the application as “Applicant & Owner” of the policy. Burnett’s application named Pamela Ravan Burnett as “Spouse” and required similar information personal to her.

The policy specifically states, as to “Ownership:” “The Applicant [Burnett] is the owner of the Policy. If the Applicant’s spouse is also an Insured Person . . . upon written proof of legal divorce the Company upon receipt of written request will issue a new policy to the Applicant’s Spouse containing the same benefits for the Spouse as this Policy, with the Spouse as named Insured and owner of the Spouse’s policy.”

This contract of insurance clearly was applied for, paid for, and owned by the deceased’s former husband, Kenneth Burnett. It was a contract personal to himself which insured, by name, his then-spouse, Pamela. When Burnett and Pamela divorced, Burnett still owned the policy. See West v. Rudd, 242 Ga. 393 (249 SE2d 76).

We do not see where Mr. Manning comes into this contractual relationship at all. He attempts to insert himself by suggesting in various ways that he was covered as the “Insured Spouse” of Pamela, but this is Kenneth Burnett’s contract and policy. It is not Pamela’s contract, and it does not cover any “insured spouse” except Pamela and the specifically named Burnett. It is not Manning’s policy.

The trial court was correct in its judgment for Burnett, for the reasons herein before set forth.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    77503.
    ALVIN LEE COMPANY, INC. v. GARMON ELECTRICAL CONTRACTORS, INC.
    (378 SE2d 384)
    Decided February 3, 1989.

      Smith, Currie & Hancock, Paul A. Bradley, for appellant.

      A. Joseph Nardone, Jr., for appellee.
   Carley, Chief Judge.

Appellant-defendant appeals from the trial court’s grant of partial summary judgment in favor of appellee-plaintiff. The trial court entered its order on March 8, 1988. On March 22, 1988, appellant filed a motion for reconsideration. The trial court denied appellant’s motion for reconsideration on May 3, 1988. Appellant filed its notice of appeal on June 2, 1988.

“[T]he only appealable order of record is the order of [March 8, 1988], granting partial summary judgment to the plaintiff. [Cits.] The appeal was not filed within 30 days from this order, however, but was filed subsequent to the denial of a motion for reconsideration of this order several months later. It has repeatedly been held that, unlike a motion for new trial, motion in arrest of judgment, or motion for judgment notwithstanding the verdict, a motion for reconsideration does not extend the time for filing a notice of appeal. [Cits.] . . . Thus we lack jurisdiction to entertain the appeal.” Becker v. Fairman, 167 Ga. App. 708, 709 (1) (307 SE2d 520) (1983). See also Hargrove v. Phillips, 186 Ga. App. 525 (368 SE2d 123) (1988); Guthrie v. D. L. Claborn Buick, 180 Ga. App. 128 (348 SE2d 523) (1986). “[E]ven if we were to construe appellant’s [motion for reconsideration] as a motion to set aside, this court would still have no jurisdiction over the appeal. Appeals from the denial of such motions are discretionary and appellant did not follow the applicable procedure to secure appellate review of the denial of [its] motion. [Cits.]” Lewis v. Sun Mgt., 182 Ga. App. 560 (356 SE2d 526) (1987).

Appeal dismissed.

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


text:
    77593, 77686.
    77782.
    GLASS v. BELL; and vice versa. DOUGLAS COUNTY v. BELL.
    (378 SE2d 385)
   Birdsong, Judge.

Three appeals arise out of a $35,000 verdict for the wrongful death of Johnny Bell, against defendants Charles A. Glass and Douglas County. On August 11, 1984, Bell died after he drove his new three-wheel “all terrain vehicle” under a cable strung across a road by defendant Glass. The cable, which Glass had hung with yellow and orange “neon” plastic streamers so as to make it clearly visible, struck Bell in the larynx, severing it from his trachea.

The plaintiff’s case in essence is that Poole Road, the dead-end, dirt road Bell was traveling, was a public road by use, prescription, repute and county up-keep; that defendant Glass had violated the law and committed wilful and wanton negligence per se by hanging a cable across a public road despite several instructions from the county to remove it; and that this negligence was the proximate cause of Bell’s death; or at least that Bell’s own negligence, if any, was less than that of Glass and Douglas County in maintaining and allowing a cable across a public road. The evidence as to whether the road, or this part of it, was public or private, was in much dispute.

In all, the three parties, in their three appeals, assert thirteen errors of law. Held:

Some of the enumerations of error in each appeal might have merit, if we got that far; but we cannot get past the fact that only 20 or 30 minutes before Bell drove east on Poole Road into the cable, he had driven that same road west, had stopped and examined the cable from five or six feet away, had remarked to his brother that if he had not stopped he would have hit the cable, and had then driven his three-wheeler to the left and around the cable to continue on his way. It was broad daylight, about 4:30 p.m., and the cable was hung (by Glass) with yellow or orange “neon” streamers to clearly mark its presence. Where Bell and his brother had entered onto Poole Road at the intersection of Ephesus Church Road, there was a sign marking this westbound Poole Road as a “dead-end.” This part of Poole Road is a dirt road which evidently just “peters out” somewhere; where it does so is part of the dispute. Presently it serves as the driveway to the house Glass has since built. There was also a no-trespassing sign near the cable and just west beyond the cable there was an 18-inch high ridge of rock passing across the entire road. After they had circumnavigated the cable, Bell and his brother proceeded to a friend’s house in the vicinity, where Bell perhaps drank a beer. Then the brothers set out on their return journey, Bell driving ahead at 25 or 30 mph. It was broad daylight. Bell went straight east on Poole Road, crossed the 18-inch rock ridge and drove into the cable.

The plaintiff contended at trial that Bell did not “assume the risk” or operate in a more negligent manner than the defendants, because when he was fatally injured he was coming back down Poole Road from the other direction from which he had 20 or 30 minutes before stood and seen the cable; and because the dirt road was hilly and bumpy and tree-covered and he could not be faulted for either having forgotten the existence or location of the cable or having not been able to see it from that direction.

Decided February 3, 1989.

Drew, Eckl & Farnham, James M. Poe, for Glass.

Parker, Johnson, Cook & Dunlevie, William C. Tinsley II, for Bell.

Assuming in favor of the verdict that the road was public and Glass was wilfully negligent and broke the law by hanging a cable across it, nevertheless Bell undisputedly knew the cable was there. It was clearly marked with streamers. Even if it was a crime to hang it there, Bell was still not excused from the duty of ordinary care which is owed by every plaintiff.

More to the point, given the facts raised by the plaintiff Mrs. Bell, that the road was hilly and bumpy and tree-covered and thus difficult to see, it was therefore particularly incumbent upon Bell in the exercise of ordinary care to travel back along it with caution for the cable. We think reasonable minds cannot differ that under the evidence in this case Bell exercised no caution and perhaps challenged a known danger. If ever it is permissible for a plaintiff to in some circumstances forget or misjudge- a defective or hazardous, or even criminal, condition of which he had taken note just 20 minutes before, the facts of this case do not allow it. The hillier, bumpier, and bushier the road became, the more caution Bell had to exercise, for he knew without doubt that not only the cable but, first, the 18-inch high ridge of rock traversed the entire road.

This is the fact we cannot escape. Assuming the worst on Glass’ part, it simply cannot be argued that Bell owed no duty of care for his own safety, and it is not argued that he exercised any. His own lack of caution was the proximate cause of his tragic death. If the complex questions in this case were “thrown to the wind” (as the trial court put it in giving them all to the jury) and resulted in some sort of meted-out amelioration, the jury’s action does not alter the fact that Bell knew the cable was there; and although the road was hilly and bumpy and perhaps difficult to see, he took no care, but drove at an unhampered speed toward the cable. It is a hard conclusion, but we have examined this case closely, and we find the law does not permit us or the trial court to overlook the clear facts of the deceased’s own lack of care, and its result. See Mann v. Hart County EMC, 180 Ga. App. 340 (349 SE2d 215); Brooks v. Douglas, 154 Ga. App. 54 (267 SE2d 495). See esp. McNish v. Gilbert, 184 Ga. App. 234, 236 (361 SE2d 231); and cf. Webster v. Vulcan Materials Co., 184 Ga. App. 749, 750 (362 SE2d 420).

The trial court erred in failing to grant summary judgment or at least directed verdicts in favor of the defendants in this case. This resolves all enumerations of error made in each of these three appeals.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.

Howe, Sutton, McCreary & Dettmering, Donald B. Howe, Jr., W. O’Neal Dettmering, Jr., for Douglas County.

Rogers, Magruder, Hoyt, Sumner & Brinson, J. Clinton Sumner, Jr., Sidney P. Wright, for Georgia Power.


text:
    77687.
    STEWART v. THE STATE.
    (378 SE2d 387)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of the offense of selling cocaine in violation of the Georgia Controlled Substances Act. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. After voir dire but before the jury was sworn, appellant, relying upon Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), moved for disqualification of the jury based upon the prosecuting attorney’s use of peremptory challenges against black prospective jurors. Appellant enumerates the trial court’s denial of his Batson motion as error.

Although the record in this case is somewhat confusing and incomplete, it does indicate that ten of the forty prospective jurors, or twenty-five percent of the panel, were black. Of the twelve jurors who tried appellant’s case three, or twenty-five percent, were black. Hence, after the jury selection had ended, the percentage of blacks on the jury was the same as the percentage of blacks on the panel. Accordingly, appellant failed even to make a prima facie showing of discrimination. See generally Williams v. State, 258 Ga. 80, 81 (3) (365 SE2d 408) (1988); Aldridge v. State, 258 Ga. 75, 76 (4) (365 SE2d 111) (1988); Harris v. State, 186 Ga. App. 756, 757 (2) (368 SE2d 527) (1988); United States v. Sangineto-Miranda, — F2d — (6th Cir. 1988).

Moreover, even assuming that appellant did meet his initial burden, the record reveals that the explanations which were offered by the prosecuting attorney for his use of peremptory strikes against black potential jurors were sufficiently racially neutral so as to rebut the prima facie showing. See generally Bess v. State, 187 Ga. App. 185 (369 SE2d 784) (1988). Accordingly, the trial court correctly denied appellant’s Batson motion.

2. The trial court, over appellant’s chain of custody objection, admitted into evidence a plastic bag containing cocaine. Appellant enumerates this evidentiary ruling as error.

A review of the record shows sufficient evidence to establish with reasonable assurance that the cocaine admitted into evidence was the same substance that the undercover agent had purchased from appellant and that there had been no tampering. The trial court properly admitted the cocaine into evidence over appellant’s chain of custody objection. See Williams v. State, 153 Ga. App. 421, 422 (3) (265 SE2d 341) (1980); Usher v. State, 148 Ga. App. 719, 720 (2) (252 SE2d 677) (1979).

Decided February 3, 1989.

L. Clark Landrum, for appellant.

David E. Perry, District Attorney, for appellee.

Judgment affirmed.

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


text:
    77182.
    BELL et al. v. FIGUEREDO et al.
    (378 SE2d 475)
   Sognier, Judge.

Naomi Jeanette Bell and Timothy. Bell brought suit against Jorge V. Figueredo, M.D., and Parkway Surgery Associates, P.C., seeking damages for personal injuries and loss of consortium arising from the alleged negligence of Figueredo in performing surgery upon Mrs. Bell. This suit was the second filed by the Bells, the first suit against the same defendants having been voluntarily dismissed pursuant to OCGA § 9-11-41 (a). The trial court dismissed the instant action because the complaint did not include an expert affidavit as required by OCGA § 9-11-9.1, and the Bells appeal.

1. Appellants contend the trial court erred by granting appellees’ motion to dismiss, arguing that a renewal action such as the case at bar stands on the same footing as the prior action, and thus an affidavit was not required in the instant action because several had been filed in the first lawsuit in opposition to appellees’ motion for summary judgment therein. The record reveals that appellants’ first suit against appellees was filed on November 29, 1984, and dismissed on March 5, 1987. Appellants then filed the instant action on September 4, 1987, but did not include an expert affidavit as required by OCGA § 9-11-9.1, which became effective on July 1, 1987.

OCGA § 9-2-61 (a) allows a party who files an action within the applicable statute of limitation and then dismisses the case to renew the claim by filing another lawsuit “either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.” Before it was revised in 1985, this statute provided that after dismissal and recommencement within six months, “the renewed case shall stand upon the same footing, as to limitation, with the original case.” Appellants argue that by deleting this phrase in the 1985 revision, the General Assembly intended to change the prior law to provide that a properly renewed action stands on the same footing as the prior action in all respects, not just as to the statute of limitation. We do not agree. When the statute was amended, the General Assembly specifically stated that the code section would continue to provide that a renewed action would “stand on the same footing, as to limitation, with the original case . . . .” Ga. Laws 1985, p. 1446. Both before and after the 1985 revision, we have recognized that the effect of OCGA § 9-2-61 (a) is solely to place the renewed action on the same footing as to the statute of limitation with the original action. See Stevens v. Faa’s Florist, 169 Ga. App. 189, 190 (311 SE2d 856) (1983); Gober v. Nisbet, 186 Ga. App. 264, 265 (1) (367 SE2d 68) (1988).

Moreover, a lawsuit renewed under OCGA § 9-2-61 is an action de novo, Adams v. Gluckman, 183 Ga. App. 666 (1) (359 SE2d 710) (1987), and accordingly all procedural prerequisites such as filing of a new complaint and perfection of service must be met anew. See id. The affidavit filing requirement must be complied with as a prerequisite to the filing of the case at bar because OCGA § 9-11-9.1 became effective after the first suit was dismissed and before this action was filed. See St. Joseph’s Hosp. v. Nease, 189 Ga. App. 239 (1) (375 SE2d 241) (1988), cert, granted. Thus, we find the trial court properly concluded that the prerequisite of filing an affidavit pursuant to OCGA § 9-11-9.1 must be met for this renewal action.

We reject appellants’ argument that under the analysis employed in McKenzie v. Seaboard System R., 173 Ga. App. 402 (326 SE2d 502) (1985), an expert affidavit is not required for a renewal action. In McKenzie, we held that a plaintiff who in an earlier suit had filed a pauper’s affidavit, which relieved the plaintiff of the obligation to pay court costs, was not obligated when filing a renewal action to include a second affidavit of indigence to satisfy OCGA § 9-2-63, which requires either payment of costs accrued in the first suit or filing of a pauper’s affidavit in the renewal action. Contrary to appellants’ assertions, McKenzie does not stand for the proposition that the effect of an affidavit filed in an earlier lawsuit somehow carries over to a renewal action; rather, McKenzie established only that when a plaintiff files a pauper’s affidavit in a lawsuit, no costs are due in that action, and thus no showing of indigence as an alternative to the costs payment requirement of OCGA § 9-2-63 is needed in the renewal action. Conversely, in the case at bar the expert affidavit was required because OCGA § 9-11-9.1, which became effective between the dismissal of the first action and the filing of the second one, was applicable, see St. Joseph’s Hosp., supra, and thus McKenzie is inapposite. Accordingly, we find the trial court properly dismissed the case. Compare St. Joseph’s Hosp., supra at 239-241 (1).

2. Appellants’ contention that the trial court’s decision was erroneous because the failure to include an expert affidavit is an amendable defect is without merit. Although this court has held that the affidavit required by OCGA § 9-11-9.1 may be supplied by amendment, St. Joseph’s Hosp., supra at 240-241 (1), (but see Carley, J., dissenting, supra at 242), appellants never filed an amendment to add the affidavit or sought the court’s permission to do so, and consequently there is nothing for this court to review. See Chafin v. Wesley Homes, 186 Ga. App. 403, 404-405 (3) (367 SE2d 236) (1988).

3. Appellants’ constitutional challenge to OCGA § 9-11-9.1 not having been raised below, we need not consider it here. Duncan v. Duncan, 226 Ga. 605 (2) (176 SE2d 88) (1970).

4. Appellants next enumerate as error the trial court’s refusal to include the record from the first lawsuit in the record presented to this court on appeal. Appellants contend the trial court either should have taken judicial notice of the prior record, including the expert affidavits, when ruling on appellees’ motion to dismiss, or should have granted their motion to include the record in the first case with the record of the second case transmitted to this court for appellate review.

A trial court may take judicial notice of records on file in the. same court, including the record of a prior action alleged to be the basis for a renewal action, but the court is not required to do so. Petkas v. Grizzard, 252 Ga. 104, 108-109 (312 SE2d 107) (1984). Further, although appellants argue that the trial court effectively had judicially noticed the record in the first action when it issued an order acknowledging that the two actions were related and thus should be heard by the same judge, we find no merit in this argument in view of the trial court’s order on appellees’ motion to dismiss in which the court specifically declined to take judicial notice of the affidavits filed in the prior action.

Nor do we agree with appellants that the trial court should have granted their motion to include both records on appeal. “Whenever the record of another case is considered by the trial court (because introduced into evidence or because judicial notice is taken), that prior record should be included in the record on appeal. [Cit.]” Continental Ins. Co. v. Carter, 171 Ga. App. 162, 163 (318 SE2d 770) (1984). Neither circumstance was met in this case as the prior record was neither introduced into evidence nor judicially noticed by the court below. The trial court is the final arbiter of any disputes in the preparation of the record, Pelletier v. Schultz, 157 Ga. App. 64, 68 (276 SE2d 118) (1981), and we find no error in the trial court’s decision to deny appellants’ motion to include the prior record.

5. Our holding in Division 3 renders moot appellees’ motion to transfer the appeal to the Supreme Court.

Decided January 23, 1989

Rehearing denied February 6, 1989

Arnall, Golden & Gregory, Jeffrey M. Smith, J. Randolph Evans, Austin E. Catts & Associates, Austin E. Catts, Robert H. Ben-field, Jr., for appellants.

Love & Willingham, Daryll Love, John E. Gilleland, Robert P. Monyak, for appellees.

Judgment affirmed.

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


text:
    77387.
    MIZE v. THE STATE.
    (378 SE2d 392)
    Decided February 6, 1989.
    Jerry C. Gray, for appellant.

      Timothy G. Madison, District Attorney, Deborah S. Wilbanks, Assistant District Attorney, for appellee.
   Pope, Judge.

William Mark Mize appeals his conviction for possession of a firearm by a convicted felon. His sole enumeration of error is that the trial court abused its discretion in denying his motion for mistrial. The motion was made at the conclusion of voir dire and was based upon the State’s questioning jurors about whether any of the jurors were members with appellant in any clubs or organizations such as the Southern Knights of the KKK or the Invisible Empire of the KKK. Appellant contends that this improperly put his character in issue. Held:

OCGA § 15-12-133 gives both the State and the defendant an absolute right to examine prospective jurors about “the relationship or acquaintance of the juror with the parties or counsel therefor . . . and religious, social and fraternal connections of the juror.” Cowan v. State, 156 Ga. App. 650, 651 (275 SE2d 665) (1980). The question asked by the State falls within this right to discover any interest prospective jurors might have in the case. The record shows that, at sentencing, appellant acknowledged that it was a “known fact” that he was a Klansman. We find no error.

Judgment affirmed.

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


text:
    77515.
    CHASTAIN v. COMOLLI.
    (378 SE2d 388)
   Carley, Chief Judge.

Alleging a claim for malicious prosecution, appellant-plaintiff brought suit against appellee-defendant. Appellee answered, denying the material allegations of the complaint. Appellant appeals from the trial court’s grant of summary judgment in favor of appellee.

1. Appellant enumerates the grant of appellee’s motion for summary judgment as erroneous, urging that a genuine issue of material fact remains concerning the lack of probable cause to initiate the prosecution.

A review of the record shows the following: Appellee obtained a judgment against appellant. A fi. fa. was issued, authorizing the sheriff to levy upon the property of appellant. The sheriff attached a truck, containing nine granite slabs, which was parked in appellant’s yard. Affixed to the truck were tags which stated that “this vehicle has been attach[ed] by the sheriff[’s] department and its contents cannot be moved. Report to the sheriff tomorrow morning. . . .” The following day appellant drove the truck away, unloaded the granite, and returned the truck to his yard.

When appellee discovered that the attached property had been removed, appellee consulted with an assistant district attorney. The assistant district attorney advised appellee that one possible course of action would be to swear out a warrant against appellant for the offense of theft by taking. Based on the assistant district attorney’s advice, appellee did swear out a warrant for appellant’s arrest. The grand jury subsequently returned an indictment against appellant for the offense of theft by taking. Thereafter, it was determined that the magistrate had given appellant verbal permission to remove the attached property. However, at the time the arrest warrant was issued, appellee had no knowledge that the magistrate had orally agreed to the removal of the attached property. The criminal charge against appellant was dismissed, it appearing that he had lacked criminal intent.

“The elements of the tort of malicious prosecution are ‘(1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was instituted without probable cause; and (6) that it damaged the plaintiff. [Cit.]’ [Cit.] . . . ‘The test of probable cause is whether it would justify a man of reasonable caution in believing that an offense has been or is being committed, and this requires merely a probability — less than a certainty but more than a mere suspicion or possibility. [Cits.]’ [Cit.]” Sizemore Security Intl. v. Lee, 161 Ga. App. 332, 333 (1) (287 SE2d 782) (1982). “The grand jury’s return of the indictment against [appellant] is prima facie but not conclusive evidence that probable cause existed for the prosecution. [Cit.]” Hill v. Trend Carpet, 154 Ga. App. 446 (1) (268 SE2d 682) (1980). If the evidence shows, however, that “ ‘ “a person in good faith truthfully communicates to the [District Attorney] all facts known to the former in relation to a criminal charge against another, and is advised that the facts as stated constitute an indictable offense, and such person becomes the prosecutor on an indictment prepared and submitted to the Grand Jury by such officer, [he] cannot be held liable in damages for a malicious prosecution at the suit of the accused, even though [the charges are subsequently dismissed].” [Cit.]’ [Cit.] There [is] no . . . evidence that appellee made any false statements to the District Attorney with regard to [appellant’s removal of the attached property] and the uncontroverted evidence is that upon investigation of the facts the District Attorney decided to seek an indictment on the [charge] of theft by taking. Under [these] circumstances, there are no questions of fact remaining with regard to [the element of probable cause].” Jones v. Walker, 167 Ga. App. 286, 287-288 (306 SE2d 315) (1983).

“ ‘Only where the material facts are not in dispute, or when only one reasonable inference can be drawn from the evidence, does the existence of probable cause become an issue of law for the court to resolve. [Cits.]’ [Cit.]” Jones v. Walker, supra at 287. This is such a case. Construing the evidence most strongly in favor of appellant, appellee pierced the allegation in appellant’s complaint concerning lack of probable cause. Appellant failed to offer any evidence to show that a genuine issue of material fact remained. “ ‘(O)nce a party in the position of a defendant who is a movant for summary judgment pierces the pleadings of one in the position of a plaintiff and shows to the court that one essential element under any theory of recovery is lacking and incapable of proof, the defendant is entitled to summary judgment as a matter of law irrespective of any issues of fact with regard to other essential elements. [Cit.]’ [Cit.]” Seligman v. Savannah Wholesale Co., 185 Ga. App. 250, 252 (1) (363 SE2d 785) (1987). “ ‘In a case of malicious prosecution, a judgment is demanded for the defendant where the plaintiff fails to show that, at the time of the prosecution, the defendant had no reasonable grounds for believing the plaintiff was guilty. [Cit.]’ [Cit.]” Stone v. Lenox Enterprises, 176 Ga. App. 696, 698 (2) (337 SE2d 451) (1985). Accordingly, the trial court correctly granted appellee’s motion for summary judgment. See Jones v. Walker, supra; Smith v. Ragan, 140 Ga. App. 33 (230 SE2d 89) (1976); Darnell v. Shirley, 31 Ga. App. 764, 765 (8) (122 SE 252) (1923).

2. Remaining enumerations of error are moot as the result of our holding in Division 1.

Judgment affirmed.

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

Decided February 6, 1989.

Andrew J. Hill, Jr., for appellant.

Gary L. Aston, for appellee.