text:
    A89A0597.
    RAGAN v. THE STATE.
    *(381 SE2d 589)
   Deen, Presiding Judge.

Anthony Ragan brings this appeal from his convictions of DUI, violation of probationary license, and failure to drive within a single lane.

1. Ragan first contends that the trial court erred in refusing to suppress the results of a breath test because the police refused to permit him to have a blood test administered as required under OCGA § 40-6-392.

Appellant was arrested for DUI because the arresting officer observed his vehicle weaving in the road, and he failed two field sobriety tests. The officer informed him of the implied consent warnings at the scene of the arrest, questioned him to be sure that he understood the warnings, and asked if he had any further questions. Ragan indicated that he understood and that he had no additional questions. He made no request for an additional test to either the arresting .officer or the intoximeter operator when the intoximeter test was done. Appellant claims, however, that he later made such a request to the booking officer at the jail, but he did not produce this officer as a witness at trial. Another prisoner testified that shortly before Ragan was released on bond, he asked the booking officer for a blood test. At trial, Ragan testified that he was held at the jail for approximately four hours. Appellant, who was a diabetic, went to a local hospital to have his blood checked for glucose at some time shortly after his release, but did not ask foi; a blood alcohol test.

While law enforcement officers may not deny the accused his right to a chemical analysis of his blood by a qualified person of his own choosing, Puett v. State, 147 Ga. App. 300 (248 SE2d 560) (1978), the state is not required to make arrangements for the test. See State v. Willis, 184 Ga. App. 639 (362 SE2d 444) (1987). Moreover, such a request would have to be made within a reasonable time after appellant’s arrest. Here, appellant was in the process of being released from jail some four hours after his arrest, when he decided he wanted police assistance in obtaining a test. Contrary to appellant’s assertion, we find that the trial court’s statement in denying the motion to suppress, that Ragan’s failure to submit to a blood test after his release from jail, although he went to the hospital to check on his diabetic condition, was merely a factor in determining the credibility of his assertion that he wanted such a test and was not a statement that police error in denying the test was negated.

While appellant claimed that he had a blood sugar imbalance “which may have altered the results of the intoximeter results” in his motion to suppress, no evidence was presented that such a condition could alter the results of an intoximeter test. As this defense was not presented at trial, it was waived. We also find no case law to support his position that because the law enforcement officers knew that he was a diabetic he should have been offered a state-administered blood or urine test.

Decided April 19, 1989.

Nancy E. Bradshaw, Gregory H. Kinnamon, for appellant.

Jack 0. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

2. Appellant also asserts the general grounds as to each of his convictions. The arresting officer had sufficient reason to make a traffic stop after observing Ragan’s vehicle travel at a high rate of speed and weave across the centerline several times. Subsequent to the stop, appellant exhibited signs of intoxication and failed the field sobriety tests. The intoximeter found his blood alcohol level to be .16 grams. When the officer asked to see the accused’s driver’s license, Ragan produced a habitual violator probationary license. Under OCGA § 40-5-58 (e) (6) one of the conditions for having such a license is that the licensee not violate any state law. We find from the evidence adduced at trial that a rational trier of fact could find Ragan guilty of the offenses with which he was charged beyond a reasonable doubt. Gordon v. State, 181 Ga. App. 391, 393 (352 SE2d 582) (1986).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A89A0633.
    PINE TIMBER COMPANY, INC. v. ANTHONY.
    (381 SE2d 591)
   Deen, Presiding Judge.

In May 1987 appellee Anthony executed a guaranty on a note on which Fall Line Forest Products, Inc., was the principal and appellant Pine Timber Company, Inc., was payee. On November 16, 1987, Anthony received from appellant’s attorney a notice of acceleration and demand for payment. On November 19, pursuant to OCGA § 10-7-24, Anthony sent to appellant and its attorney a letter advising appellant to “proceed to collect the debt from the principal.”

In June of 1988 appellant, without having brought an action against the principal, filed a complaint against appellee in the Superior Court of Taylor County, seeking the balance due on the note plus attorney fees and statutory interest and costs. Anthony answered, denying all allegations and asserting by way of defense that he had given the plaintiff notice on November 19 in compliance with OCGA § 10-7-24. He counterclaimed for damages on the basis that appellant’s suit was “substantially frivolous, substantially groundless and substantially vexatious and abusive.” Both parties moved for summary judgment, and the trial court denied plaintiff/appellant’s motion and granted that of defendant/appellee. Pine Timber Company now appeals, alleging, in essence, that OCGA § 10-7-24 has been superseded by statutes derived from the Uniform Commercial Code and codified in OCGA Title 11. Held:

Decided April 19, 1989.

Jon L. Coogle, for appellant.

Walker, Richardson, Hulbert, Gray & Byrd, Charles W. Byrd, for appellee.

We find nothing in the Official Code of Georgia Annotated, in general, or in Title 11, in particular, which would support appellant’s position. OCGA § 10-7-24 remains a viable part of Georgia law and is cited regularly in decisions of the Georgia courts. See, e.g., Morrison Assur. Co. v. Preston Carroll Co., 254 Ga. 608 (331 SE2d 520) (1985); Brice v. Northwest Ga. Bank, 186 Ga. App. 871 (368 SE2d 816) (1988); Breedlove v. Hurst, 181 Ga. App. 4 (351 SE2d 212) (1986).

Appellee’s letter of November 19, 1987, is in precise compliance with the requirements of OCGA § 10-7-24. Having thoroughly examined the entire record in the instant case, we find no error.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0676.
    MANLEY v. THE STATE.
    (381 SE2d 592)
   Deen, Presiding Judge.

The appellant, Charles Manley, was arrested for driving under the influence after he was stopped by police for exiting an interstate highway by an exit ramp that was closed for construction. An intoximeter test indicated a blood alcohol content of .13 grams percent. Manley was charged with driving under the influence in one count, and driving with a blood alcohol content of .12 or more in another count.

At trial an expert witness for the defense testified that the intoximeter results were inaccurate in this case, because the machine was based on an average blood-to-breath ratio of 2100 to 1, and Manley’s ratio was only 1603 to 1. The expert explained that where the blood-to-breath ratio is less than the average ratio, the intoximeter results would be higher than the actual blood alcohol content. In this case, accounting for the margin of error due to Manley’s different blood-to-breath ratio, his blood alcohol content would have been around .09 grams percent.

Decided April 19, 1989.

Turner & Lennard, Donald C. Turner, Mark A. Lewis, for appellant.

Gerald N. Blaney, Jr., Solicitor, George L. Kimel, Faye S. Pous, Assistant Solicitors, for appellee.

In addition to charging the jury on OCGA § 40-6-391 (a) (4), the trial court told the jury that (1) if it found Manley’s blood alcohol content to be .10 or more, it might infer that Manley was under the influence; (2) if it found Manley’s blood alcohol content to be more than .05 but less than .10, no inference either way arose; and (3) if it found Manley’s blood alcohol content to be less than .05, Manley would be presumed to be not under the influence. The trial court would not give Manley’s requested jury charge about giving the defendant the benefit of any margin of error the jury may find in the intoximeter machine. The trial court subsequently declared a mistrial on the “per se” count alleging a blood alcohol content of .12 or more, because the jury was hopelessly deadlocked. The jury returned a verdict of guilty on the general count of driving under the influence of alcohol, and this appeal followed. Held:

Pretermitting the issue of whether the trial court erred in refusing to give Manley’s requested charge on the margin of error, any error would be harmless since the jury found Manley guilty only of the general count of driving under the influence of alcohol. Harm as well as error is necessary before reversible error is shown. Stoe v. State, 187 Ga. App. 171 (369 SE2d 793) (1988).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0733.
    NICHOLS v. THE STATE.
    (381 SE2d 593)
   Deen, Presiding Judge.

Thomas Edward Nichols was convicted of three counts of armed robbery and one count of violation of the Georgia Controlled Substances Act.

The evidence showed that the defendant and his cousin, James Nichols, left James’ residence on the night in question in James’ automobile. They committed three armed robberies by driving up to a convenience store, the defendant would remain inside the car, James would enter the store, brandish a knife, and demand money. After receiving it he would flee in the car.

The police officer who stopped James’ vehicle because it answered the description of the one driven by the robbers testified that the defendant was found to have a plastic bag containing cocaine residue in his pockets. He later showed the officer needle tracks on his arms and stated that he and his cousin had been partying all night long, and when they ran out of money James would go back to another store and get more money. They would then buy more “dope” and party some more.

Decided April 19, 1989.

James R. McKay, for appellant.

1. Nichols first asserts the general grounds. While it is true that mere presence at the scene of a crime is not sufficient to convict one as a party to the crime, the jury may find criminal intent “ ‘upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.’ OCGA § 16-2-6.” Lunz v. State, 174 Ga. App. 893, 895 (332 SE2d 37) (1985); Kimbro v. State, 152 Ga. App. 893 (264 SE2d 327) (1980). See also Smith v. State, 188 Ga. App. 415 (373 SE2d 97) (1988).

Nichols offered no reasonable explanation for his presence during the commission of the crimes and admitted that he enjoyed the fruits of the crimes. Accordingly, in applying the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find that the evidence was sufficient to support his convictions.

2. Contrary to Nichols’ assertion, we find that the arresting officer had probable cause to arrest and search him. The officer was aware that two men had either directly or indirectly participated in a series of armed robberies over a nine-hour period. The second party was reported as either a passenger in the vehicle or the driver during the getaway. After the second robbery, he was reported as making several trips to or near the store shortly before it was robbed. The arresting officer traced the license tag of the vehicle to James Nichols. He went to James’ residence, and his grandmother informed the officer that the defendant had left the house with James. When the officer stopped the vehicle and discovered that the driver, James, matched the description of the robber, he arrested both of its occupants. Because a second person was reported as accompanying the robber and driving the vehicle after one of the robberies, the officer had probable cause to conclude that the defendant was a participant in the robberies, and the arrest was lawful. The ensuing search, which yielded a plastic bag containing traces of cocaine, was made pursuant to a lawful arrest. Wade v. State, 184 Ga. App. 289, 291 (361 SE2d 266) (1987); Laws v. State, 180 Ga. App. 528, 529 (349 SE2d 478) (1986).

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Stephen F. Lanier, District Attorney, Harold Chambers, Assistant District Attorney, for appellee.


author: Birdsong, Judge.

text:
    A89A0130.
    HOLCOMB v. THE STATE.
    (381 SE2d 594)
   Birdsong, Judge.

Bryce William Holcomb was convicted of driving under the influence of alcohol and sentenced to twelve months suspended upon payment of a fine and post-conviction remedial training, weekend incarceration, and public service. He brings this appeal raising three enumerations of error. Held:

1. In his first enumeration, Holcomb complains the trial court erred in denying a pretrial motion to quash. The basis of this motion to quash was that the arresting officer had no probable grounds for arrest and thus all information developed after the arrest was improperly admitted and considered. The principal reasoning advanced by Holcomb is that he was never seen operating his vehicle in an erratic or dangerous manner and in fact the arresting officer conceded that, based upon his observation of the operation of the vehicle by Holcomb, there was no reason to stop the car or ultimately to make an arrest.

However, we must observe that Holcomb is not charged with nor convicted of reckless or dangerous driving. The actual facts are that Holcomb, while celebrating his fiftieth birthday, drank a half gallon of vodka over a weekend. He admittedly drove his car to a convenience store to purchase cigarettes. As he left his home or after he left his home, his wife called the police advising them that her husband was intoxicated and driving a described auto with a particular tag number. This information was broadcast over the police network and received by an officer. The officer drove to the area where the wife reported her husband would be driving. The officer observed the car described in the lookout broadcast and saw Holcomb driving the vehicle. The two cars were at an intersection but going in opposite directions. The officer turned around to pursue Holcomb’s car but Holcomb lived on the corner of the intersection and by the time the officer had begun the chase, Holcomb turned into the driveway of his condominium complex and parked his car. The officer turned in behind Holcomb who had in the meantime abandoned the car and fled toward the door to his house. The officer pursued Holcomb to the condominium where he was met by appellant’s wife. She invited the officer inside, informing the officer her husband had gone to the rear of the house. Though the officer did not see anyone at the rear of the house, he heard someone climbing stairs to the second floor. The officer, from the foot of the stairs, called upon Holcomb to come back downstairs, to answer some questions. Upon receiving no response, the officer ascended the stairs and observed Holcomb lying in bed covered over with bed coverings. It was determined that Holcomb had pulled off his shoes and was lying in bed otherwise fully clothed. The officer detected a strong odor of alcohol coming from the person of Holcomb. Further examination disclosed that Holcomb spoke with slurred speech, his face was flushed, he could not recite the alphabet, had difficulty maintaining balance and when standing would “weave like a tree in a breeze, he’d been drinking a lot.” There was no doubt in the officer’s mind that Holcomb was under the influence of alcohol. Likewise, he was certain this was the same man he had seen driving a few minutes earlier. It was only after the officer made the conclusion of intoxication based upon his personal observations that Holcomb was placed under arrest for driving under the influence.

Though this was the state of facts developed at trial, the order of the trial court denying the motion to quash the accusation relied more heavily upon the knowledge of the arresting officer that a man driving a particular car at a particular place and time was alleged to be intoxicated; that the car was observed by the officer and followed; the driver drove into a driveway, parked, abandoned the car, and fled. The arrest occurred after the officer, in hot pursuit, was invited into the house by Mrs. Holcomb and found Holcomb fully dressed in bed and then only after having spoken with Holcomb.

In its order the court rejected any argument that Holcomb’s car had been stopped by the officer. The ruling concluded that the officer had apparently received reliable information that Holcomb was driving while intoxicated, but when the officer sought to verify this report, Holcomb fled and sought to hide. The arrest only occurred after Holcomb was confronted and physically observed.

The report received over the radio constituted sufficient grounds to create an articulable suspicion warranting reasonable cause to stop Holcomb. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889). When the effort to stop proved impossible, the arresting officer saw the suspect flee and thereafter make an attempt to avoid the officer’s observations of his physical condition. We are satisfied the officer legally pursued Holcomb to his bedroom. “ ‘ “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow ... a criminal to escape. On the contrary, Terry [v. Ohio, supra] recognizes that it may be the essence of good police work to adopt an intermediate response. ... A brief [encounter with] a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” [Cits.]’ Stiggers v. State, 151 Ga. App. 546, 547 (260 SE2d 413) (1979).” Coley v. State, 177 Ga. App. 669, 670 (341 SE2d 9). Moreover, under the attendant facts, appellant’s wife validly consented to the officer’s entry into their bedroom thereby negating any issue of an arrest tainted by an illegal entry of appellant’s home. Compare the facts of this case with Payton v. New York, 445 U. S. 573 (100 SC 1371, 63 LE2d 639). When the officer engaged in conversation with Holcomb and observed his condition, there can be no question that reasonable cause was manifested and the arrest was proper. See Griggs v. State, 167 Ga. App. 581, 582 (307 SE2d 75).

Appellant counters by arguing that while driving his car he was not seen to be violating any law nor causing any hazards or other danger to the public. Because Holcomb had already parked his car, there was no further need to protect the public. This argument ignores the fact that the violated law proscribes anyone in this state from operating a motor vehicle while under the influence of an intoxicant. It is beyond dispute that the arresting officer saw Holcomb driving a motor vehicle and within a few minutes of such observation determined that Holcomb was substantially impaired in his physical and mental faculties. Thus appellant’s argument misses the mark and is not relevant to the crime charged — driving under the influence as opposed to driving with reckless disregard for the safety of others.

2. In his second enumeration of error, appellant urges that the evidence was insufficient as a matter of law to support the findings of guilt. The basis of this contention is a continuation of the argument that the only direct evidence of Holcomb’s operation of the motor vehicle was that while observed, the car was operated in a safe and lawful manner. This still ignores the undisputed evidence that Holcomb was substantially intoxicated while driving on that occasion.

On appeal, our duty is to construe the evidence so as to uphold the jury’s verdict. Rhodes v. State, 168 Ga. App. 10, 11 (1) (308 SE2d 33). There can be no doubt that evidence before the jury was amply sufficient to convince any rational trier of fact of Holcomb’s guilt beyond any reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Osteen v. State, 176 Ga. App. 722, 723 (2) (337 SE2d 369).

3. In his final enumeration, Holcomb submits the trial court erred in allowing the State to propound to him this question on cross-examination: “Isn’t it a fact that if you were not under the influence of alcohol that [the B-A] test would have cleared you?” Holcomb complains the question calls for a speculative answer and thus was objectionable.

Before the objection was made, Holcomb in substance had already admitted that the test would have shown his non-intoxication if he had “passed” the test. However, the question of intoxication really was not in issue for Holcomb freely admitted he had consumed a half gallon of vodka over the past 50-60 hours, had consumed an unstated amount prior to driving, and was not sure he could pass the test if administered. His contention at trial was that his only reason for refusing the test was his indignation at having his bedroom invaded and being arrested in his own bed for driving his car under questionable circumstances.

Decided April 20, 1989.

Howard T. Overby, L. Eddie Benton, Jr., for appellant.

Lydia S. Jackson, Solicitor, for appellee.

The fact that Holcomb had refused to take an appropriate test to determine if he was intoxicated clearly was admissible and evidence to that effect already adduced. OCGA § 40-6-392 (c). In explanation of his refusal, he had stated his reason for having refused to subject himself to that test. He therefore had “opened the door” as to the area of explanation of his conduct. The question propounded by the State apparently was designed to test the basis for the declination of the test and to offer the jury another plausible reason. The scope of cross-examination lies largely within the discretion of the trial court. Hudson v. State, 137 Ga. App. 439, 440 (1) (224 SE2d 48). We will not disturb the exercise of that discretion in the absence of a clear manifestation there has been an abuse of that discretion. Gravitt v. State, 220 Ga. 781 (141 SE2d 893). We find no such abuse in this case. Moreover, inasmuch as the issue of intoxication was not the sine qua non of the appellant’s defense, even assuming the speculativeness of the answer called for by the question rendered the question of dubious value, there could be no prejudice such as would infect an otherwise valid verdict and judgment. See Dill v. State, 222 Ga. 793 (152 SE2d 741). We find no error in the admission of the question and answer.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Pope, Judge.

text:
    A89A0279.
    MORRIS v. BARNET.
    (381 SE2d 597)
   Pope, Judge.

Plaintiff John Calvin Morris served as both architect and general contractor for the design and construction of a residence in Cartecay, Georgia. Defendant Joseph B. Barnet, doing business as a construction firm known as Added Dimensions, was hired as a subcontractor for erecting the house. On August 17, 1985, while inspecting the partially constructed house with the owner, plaintiff was injured when a ladder slid and fell while plaintiff was descending from the second floor of the building to the first floor, causing him to fall fifteen feet. Defendant brought the ladder to the construction site and placed it at the location where plaintiff fell. Plaintiff sued defendant for his injuries, alleging defendant negligently failed to secure the ladder in its place or to equip the ladder with an anti-skid device. The trial court granted summary judgment to defendant and plaintiff appeals.

Decided April 20, 1989.

Smith, Currie & Hancock, Charles Surasky, Fredric W. Stearns, for appellant.

Lokey & Bowden, Glenn Frick, Totsy Nichols, Peter K. Kintz, for appellee.

“A building contractor or subcontractor has a duty, in prosecuting his work, to use ordinary care not to cause injuries to others engaged in work on the same premises. Doke v. Dover Elevator Co., 152 Ga. App. 434 (263 SE2d 209) (1979). However, just as in any other negligence action, a breach of such duty will not give rise to liability to a plaintiff who could have avoided injury to himself by the exercise of ordinary care. See generally OCGA § 51-11-7. Furthermore, ‘(o)ne who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.’ Barrow v. James, 107 Ga. App. 377, 378 (130 SE2d 352) (1963).” Soucy v. Alexander, 172 Ga. App. 501, 502 (323 SE2d 662) (1984).

On the day of this incident, the roof was not yet on the building. It had been drizzling rain and plaintiff knew the sub-flooring material on which the ladder was placed was damp. Plaintiff testified he checked the ladder before he climbed to the second floor and it appeared to be safe. If the ladder was not properly secured or lacked the proper anti-skid device, plaintiff had an opportunity equal to that of the defendant to discover those facts. Thus, even if plaintiff could show the defendant negligently secured the ladder, defendant would not be liable to plaintiff under these circumstances.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0743.
    CALLOWAY v. THE STATE.
    (381 SE2d 598)
   Deen, Presiding Judge.

Appellant Calloway was arrested for driving under the influence. The arresting officer testified that appellant’s breath smelled of aleohoi, that his eyes were glassy and his gait unsteady, and that he failed the two field sobriety tests administered. The officer concluded that under these circumstances appellant was a less safe driver because of this apparent alcohol consumption, placed him under arrest, read him his implied consent rights, and obtained his consent to a chemical test of his breath. After again being read his rights and signing an implied consent form, Calloway underwent an Intoximeter 3000 test, the results of which indicated a blood alcohol level of .17 grams percent.

A DeKalb County jury found appellant guilty on the charges of driving under the influence of alcohol and driving with an unlawful blood alcohol concentration. On appeal Calloway enumerates as error the trial court’s failure to grant his motion in limine (which appellant denominated a motion to suppress) based on the State’s alleged failure to prove that the intoximeter was accurately calibrated; and (2) the court’s denial of his motion to dismiss, based on the State’s alleged failure to produce certain documents that had been requested by the defense. Held:

1. Rule 570-9-.06 (8) requires the Director of the State Crime Laboratory to “cause each instrument used in the administration of breath tests to be checked periodically for calibration and operation and a record of the results ... to be maintained.” In Sapp v. State, 184 Ga. App. 527 (362 SE2d 406) (1987), this court cited the above rule and held, with regard to a challenge to the results of a breath test similar to that raised below: “ ‘There is a presumption of law that a public officer has done his duty, and his official duties will be presumed to have been done rightly until the contrary is shown. (Cit.)’ [Cit.] Accordingly, there is a presumption in this and in all other cases arising under [the relevant Code sections] that the Director of the State Crime Laboratory has caused the instrument used to administer the breath test to be checked periodically for calibration.” Id. at 529; accord Holt v. State, 181 Ga. App. 798 (354 SE2d 167) (1987). According to the record, appellant did not adduce sufficient competent evidence to overcome these presumptions. This enumeration is without merit.

2. Likewise without merit is appellant’s second enumeration, inasmuch as “[t]he materials sought by appellant [e.g., maintenance records, police department logs] were not the types of items reasonably expected to be found in the ‘custody’ of the solicitor preparing the case against appellant.” Fletcher v. State, 157 Ga. App. 707, 709 (278 SE2d 444) (1981). It would therefore be unreasonable to expect the prosecution to produce such materials for the defense, and it was not error for it not to do so. See Hicks v. State, 232 Ga. 393 (207 SE2d 30) (1974); accord Honrine v. State, 177 Ga. App. 490, 491 (339 SE2d 768) (1986).

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided April 20, 1989.

William D. Smith, Robert A. Danenberg, for appellant.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Neal R. Bevans, Assistant Solicitors, for appellee.


author: Sognier, Judge.

text:
    76283, 76418.
    VOGTLE v. COLEMAN (two cases).
    (382 SE2d 438)
    Decided April 21, 1989.

      William Lewis Spearman, John J. Dalton, for appellant.
   Sognier, Judge.

The Supreme Court in Vogtle v. Coleman, 259 Ga. 115 (376 SE2d 861) (1989), addressed the two appeals consolidated in this court’s opinion in Vogtle v. Coleman, 188 Ga. App. 159 (372 SE2d 642) (1988). The Supreme Court affirmed Case No. 76283, specifically insofar as Division 5 of our opinion is concerned. Vogtle v. Coleman, 259 Ga. at (1). As to Case No. 76418, the Supreme Court expressly affirmed our holding that Coleman was not entitled to the $33,254.60 in attorney fees and expenses of litigation awarded by the trial court pursuant to OCGA § 9-15-14, see Vogtle v. Coleman, 259 Ga. at 116 (2), but reversed the judgment line in that case. We had noted in passing that Ferguson v. City of Doraville, 186 Ga. App. 430, 433 (367 SE2d 551) (1988) addressed the recoverability of attorney fees and expenses of litigation in a pre-OCGA § 9-15-14 context. The Supreme Court overruled Ferguson on this one limited issue (Vogtle v. Coleman, 259 Ga. 119, fn. 8) and held in its Division 3 that “the trial court correctly allowed Coleman these expenses [i.e., the $33,254.60] for prosecuting his Yost claim,” (emphasis in original deleted; emphasis supplied) pursuant to OCGA § 13-6-11, apparently under a “right for any reason” standard. See generally Knight v. Stevens Logging, 173 Ga. App. 359, 360 (1) (326 SE2d 494) (1985). This language controls Vogtle’s arguments referenced in Division 9 of our opinion adversely to him. Accordingly, we vacate the judgment line in Case No. 76418 and the judgment of the Supreme Court is made the judgment of this court.

Judgments affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur.

George J. Polatty, Jr., Kirk M. McAlpin, for appellee.


author: Carley, Chief Judge.

text:
    A89A0150.
    CLARK v. THE STATE.
    (381 SE2d 763)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of aggravated assault. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant enumerates as error the trial court’s refusal to strike a prospective juror for cause.

“We are confronted here with [a challenge] for favor. Whether to strike a juror for favor lies within the sound discretion of the trial court [(cit.)], and absent manifest abuse of that discretion, appellate courts will not reverse. [Cit.] Harris v. State, 178 Ga. App. 735, 736 (1) (344 SE2d 528) (1986). “While the [prospective juror] may have initially expressed some doubt as to his impartiality, this does not mean as a matter of law that he be excused for cause. The [prospective juror,] having indicated to the trial judge that he could render a fair and impartial verdict based solely on the evidence presented in court[,] . . . was prima facie competent to serve as a juror in the case sub judice. . . . Under the circumstances of the case sub judice, we find no abuse of the trial court’s discretion. [Cits.] This enumeration of error is without merit.” Durham v. State, 185 Ga. App. 163, 165 (2) (363 SE2d 607) (1987).

2. When the investigating officer was asked if he had advised appellant of his Miranda rights, the officer responded that he had read appellant his rights. The officer was then asked what those rights were and he read the rights from a Miranda warning card. Thereafter, the officer added that he “had secured the waiver by saying do you understand each of the rights I have explained to you. Having these rights in mind, do you wish to talk to us now. [Appellant] at that time declined to make any statements.” Appellant moved for a mistrial, urging that this testimony amounted to an impermissible comment on the exercise of his right to remain silent. Appellant enumerates as error the trial court’s denial of his motion for mistrial.

“There was only one reference to appellant[’s] silence, and that reference was in [the investigating officer’s] testimony which was not in response to the prosecutor’s question. The prosecutor never again mentioned [the investigating officer’s] comment and did not comment on appellantf’s] silence, either in cross-examination or for impeachment purposes. Thus, there was no focus on appellant[’s] silence sufficient to constitute prejudicial error. [Cit.]” Evans v. State, 167 Ga. App. 396, 398-399 (306 SE2d 691) (1983), overruled on other grounds, Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984).

Decided April 21, 1989.

Allison Cobham, for appellant.

Lewis R. Slaton, District Attorney, Katherine Beaver, Joseph J. Drolet, Assistant District Attorneys, for appellee.

3. Appellant enumerates as error the trial court’s refusal to instruct on simple assault as a lesser included offense.

Appellant urges that such a charge was authorized because the weapon utilized in the assault, an empty pellet gun in the shape of an automatic weapon, was not a “deadly weapon . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). The law clearly provides, however, that “ ‘if (the weapon) reasonably appeared to the victim to be deadly, then [appellant] should be held to the consequences of using a “deadly weapon.” ’ [Cit.]” Moore v. State, 169 Ga. App. 24, 26 (6) (311 SE2d 226) (1983). After reviewing the record, we find that “the [pellet] gun in this case, in the way it was used as established by uncontradicted evidence, was per se a ‘deadly weapon.’ ” Watts v. State, 142 Ga. App. 857, 859 (4) (237 SE2d 231) (1977). See also Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305) (1981). It is not error “for the trial court to refuse to give [a charge on simple assault] ‘when the evidence does not reasonably raise the issue that the defendant may be only guilty of the lesser crime.’ [Cit.]” Garrett v. State, 184 Ga. App. 593, 595 (4) (362 SE2d 150) (1987).

4. Appellant enumerates as error the trial court’s instruction on flight. However, the instruction was approved in Lingerfelt v. State, 255 Ga. 180, 182 (5) (336 SE2d 250) (1985) and was clearly authorized by the evidence in this case.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in Divisions 1, 3, 4, and in judgment.


text:
    A89A0397.
    MOSS v. THE STATE.
    (381 SE2d 765)
   Pope, Judge.

Defendant appeals his conviction and sentence for the offense of incest. Held:

1. Defendant first contends that the testimony of certain mental health therapists and psychologists who evaluated or counseled the victim should have been excluded because the State did not provide the defendant with the witnesses’ written “scientific” reports at least ten days prior to trial as required by OCGA § 17-7-211. The record shows that the trial court deemed inadmissible any testimony or reports based on knowledge gained by scientific tests or methods. The trial court allowed the witnesses to give their opinion as to whether the victim had been sexually abused based not on scientific tests but on their own observation of the victim and on their training and experience. We agree that this testimony, even if based on written notes or reports, did not constitute “written scientific reports” as that term is used in OCGA § 17-7-211 and the trial court did not err in so finding. See Williams v. State, 251 Ga. 749 (3b) (312 SE2d 40) (1983); Ramsey v. State, 165 Ga. App. 854 (2) (303 SE2d 32) (1983). Moreover, the record shows that defendant did not seek to exclude the testimony of the first therapist who testified on the basis of OCGA § 17-7-211; thus any objection to the testimony of that witness on the basis of OCGA § 17-7-211 was waived. Ford v. State, 256 Ga. 375 (2c) (349 SE2d 361) (1986). As to the other two witnesses, the record shows that the State did not become aware that they were counseling the victim until several days before trial, at which time the prosecutor notified defense counsel of the possibility that they might be called as witnesses at trial. Hence, in this case not only was the State unaware of the witnesses’ written reports so as to provide them to the defendant, but was in fact unaware that the witnesses existed until shortly before the trial was scheduled to begin. For these reasons also we find no error which would warrant a new trial. Carey v. State, 257 Ga. 134 (3) (356 SE2d 507) (1987). Consequently, this enumeration affords no basis for reversal.

Decided April 21, 1989.

J. Philip Carr, for appellant.

Joseph H. Briley, District Attorney, Alberto Martinez, Assistant District Attorney, for appellee.

2. We have examined defendant’s enumeration concerning the voir dire of the jury and also find it to be without merit.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0569.
    WILLIAMSON v. THE STATE.
    (381 SE2d 766)
   Pope, Judge.

The appellant, Billie Williamson, was convicted of the offense of theft of services. On appeal she challenges the sufficiency of the evidence, arguing that the State failed to show the intent necessary to warrant the conviction. We agree and reverse.

The evidence adduced at trial showed the following: The appellant and Ms. Lisa Reaves agreed that Reaves would keep the appellant’s child for approximately two weeks while appellant and her husband traveled to Atlanta to work for a Mr. News selling onions. Reaves testified that appellant agreed to pay her $150 for her services. It is undisputed that appellant failed to pay Reaves when appellant and her husband returned from Atlanta and picked up the child. Appellant testified that she intended to pay Reaves but was unable to pay her because they were not paid for the work they did for News. Appellant further testified that Reaves knew that they intended to pay her from the funds they earned working in Atlanta. Reaves testified she did not know until “later” that she would not be paid until appellant was paid for the work she did in Atlanta. Reaves also testified, however, that appellant and her husband told her the money to pay her would come from the money they received for working in Atlanta.

OCGA § 16-8-5 provides: “A person commits the offense of theft of services when by deception and with the intent to avoid payment he knowingly obtains services,. . . which [are] available only for compensation.” “ ‘The essential ingredient of the offense is the intention to avoid payment.’ Roberson v. State, 145 Ga. App. 687, 688 (1) (244 SE2d 629) (1978).” Johnson v. State, 159 Ga. App. 497, 498 (283 SE2d 711) (1981).

As is usual in cases of this type, there is no direct evidence that appellant obtained services by deception and with the intention of avoiding payment. The question then becomes whether the circumstantial evidence warranted the conviction. “To sustain a conviction on circumstantial evidence only, the State must prove facts that are not only consistent with the hypothesis of the guilt of the accused, but the facts proved must exclude every other reasonable hypothesis. . . . Circumstantial evidence is worth nothing in a criminal case, if the circumstances are reasonably consistent with the hypothesis of innocence, as well as the hypothesis of guilt.” (Citations and punctuation omitted.) Johnson v. State at 499.

In the case at bar, we have appellant’s unimpeached testimony that she intended to pay Reaves for keeping her child and that the only reason she did not pay her upon her return from Atlanta was because she and her husband did not receive the anticipated payment for the work they performed. “[T]he intent to defraud . . . must be proved to be co-existent with the contract.” (Citation and punctuation omitted.) Roberson v. State, supra at 689. Under the facts of the present case “we are not convinced that the evidence was sufficient to establish the requisite intent on the part of the appellant. However, even assuming that the evidence adduced by the [S]tate was sufficient to support the hypothesis of appellant’s guilt, it failed to exclude every other reasonable hypothesis. The evidence [that appellant did not pay for the services rendered] is equally consistent with the theory that [she] merely breached a civil contract. [When] the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence . . . the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence. One of the fundamental principles of law in Georgia is that we do not imprison people for debt.

Decided April 21, 1989.

Alan P. Layne, D. Duston Tapley, Jr., for appellant.

David B. Pittman, Solicitor, for appellee.

“As the [S]tate failed to carry the burden of proof, the judgment of conviction must be reversed.” (Citations and punctuation omitted.) Johnson v. State at 500.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A0578.
    CAMPBELL v. THE STATE.
    (381 SE2d 599)
   Deen, Presiding Judge.

Appellant Campbell and a co-defendant were tried on charges of violation of the Georgia Controlled Substances Act. At arraignment on August 17,1987, appellant’s counsel requested copies of a scientific report, pursuant to OCGA § 17-7-211. The State did not furnish the report until May 3, 1988. On May 12 the case was sounded for trial and a jury selected but not sworn. Campbell’s counsel then called to the court’s attention the fact that the report had been served only nine days prior to trial, in contravention of the 10-day requirement of OCGA § 17-7-211, supra. He declined to waive the one-day discrepancy. The district attorney then moved for a continuance, offering to pay for any costs incurred thereby. The trial court granted a one-day continuance, whereupon defense counsel requested that the case be stipulated as being tried on May 13 but actually be tried on May 12 (the current date), as a means of conserving time and money. The case was then tried, and the jury found the defendant guilty as charged. On appeal Campbell enumerates as error the admission of the testimony of a crime laboratory expert over defense counsel’s objection that the laboratory report had not been furnished in a timely manner. Held:

By agreeing, after the trial court had granted the State’s motion for a continuance, to stipulate that the case was tried on May 13 even though it was actually tried on May 12, defendant waived any objection that he might have had to service of the laboratory report on May 3. In Todd v. State, 163 Ga. App. 814 (294 SE2d 714) (1982), cert. denied, as in the instant case, the properly requested document was furnished less than 10 days before trial, and after the jury was selected but not yet sworn, and the trial court granted the State a continuance and offered to empanel a new jury. Defendant declined the offer but contended on appeal that the document should have been excluded from evidence. This court held that “by refusing the offer of another jury [to be empaneled for trial] more than ten days after receiving the [document,] defendant clearly waived any possible objection to the admission” of the challenged document on the basis of its not being in compliance with OCGA § 17-7-211. Id. at 816. Cf. Asbell v. State, 163 Ga. App. 514 (295 SE2d 182) (1982). Because the objection to the crime lab expert’s testimony was based on the alleged inadmissibility of the laboratory report due to non-compliance with the cited Code section, appellant’s enumeration of error is without merit. State v. Madigan, 249 Ga. 571, 573 (292 SE2d 406) (1982).

Judgment affirmed.

Birdsong, J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

Although I agree with the majority that appellant is not entitled to a new trial because of the admission of testimony of an expert whose report had not been provided 10 days before trial, I cannot agree that appellant waived his objection by agreeing to stipulate that the case was tried after the continuance, but actually trying the case on the day it was called.

As the majority noted, the State moved for and the trial court granted a continuance so that there would be 10 days between provision of the report to appellant and the commencement of trial. That is the remedy approved by this court in Tanner v. State, 160 Ga. App. 266 (1) (287 SE2d 268) (1981), and that is the reason why appellant is not entitled to a new trial.

The motion that appellant waived his objection to the State’s failure to provide him with the scientific report within the statutory time limit is refuted by the record and does a disservice to an attorney who insisted on his client’s rights but attempted to avoid causing undue trouble and expense for the county insofar as he could without compromising his client’s interests. When the issue of the State’s failure to comply with the discovery statute first arose, after the jury was selected but before it was sworn, defense counsel insisted that the only remedy was to exclude the testimony of the expert. When the trial court refused to give that relief and stated that it would postpone trial one day so that appellant would have the full 10 days afforded him by statute, appellant agreed to continue with the trial that day only on condition that it be stipulated that the trial had been continued and was being tried that day as though it were the next. All of defense counsel’s efforts in that regard were for the purpose of avoiding doing exactly what the majority asserts he did, waive his client’s rights.

Decided April 24, 1989.

C. Gregory Culverhouse, for appellant.

Darrell E. Wilson, District Attorney, Kim H. Swartz, Assistant District Attorney, for appellee.

Later in the trial, at the conclusion of the expert’s testimony, when defense counsel reminded the court that he still objected to the admission of the testimony, the trial court reassured counsel that his objection had been reserved, that the trial court would not “sandbag” him, that the record would be clear that the objection was made, and that “the District Attorney’s office . . . would agree” that the objection was made. This court should not ignore the efforts of appellant’s counsel to preserve the objection, and thereby undermine the trial court’s authority by rendering nugatory its reassurances to the defense that its objections had been sufficiently made. The majority’s decision provides a disincentive for counsel to attempt to cooperate with the court and thwarts efforts to achieve both judicial economy and justice. That is why I can concur only in the judgment of the majority’s opinion and why I am compelled to explain the basis for my opinion that the judgment line is correct but the majority’s rationale for reaching it is not.


author: McMurray, Presiding Judge.

text:
    A89A0965.
    WRIGHT v. THE STATE.
    (381 SE2d 601)
   McMurray, Presiding Judge.

Defendant appeals his conviction for selling marijuana, a violation of the Georgia Controlled Substances Act. Held:

1. By his first enumeration of error defendant contends the trial court failed to instruct the jury on the issue of venue. Defendant argues that the trial court failed to give any charge whatsoever as to the issue of venue.

Contrary to defendant’s assertion we find that the jury was given adequate instruction on the issue of venue. The trial court charged: “Now, as to the form of your verdict, if you find this defendant committed this offense in this county as alleged in this bill of indictment and you make such a finding beyond a reasonable doubt, then the form of your verdict would be, we, the jury, find the defendant guilty.” (Emphasis supplied.) While much less than a model of clarity, as it was imbedded in a charge on the form of the verdict, the emphasized language was sufficient to present the requirement that the State prove venue beyond a reasonable doubt in order to authorize a verdict of guilty.

Decided April 24, 1989.

Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, J. Thomas Durden, Assistant District Attorneys, for appellee.

Even in the absence of the above-noted language, there was no error since the State presented uncontradicted evidence of venue and the trial court instructed the jury that each material element of the indictment must be proved beyond a reasonable doubt. See Harwell v. State, 230 Ga. 480 (1) (197 SE2d 708). Accord Hance v. Zant, 696 F2d 940, 957 [43-45]. This enumeration is without merit.

2. In his remaining enumeration of error, defendant raises the sufficiency of the evidence. The sole defense at trial was entrapment. Although defendant does not deny that he participated in the crime as charged, he does contend that the idea and intention of the commission and the crime originated with the State’s agents, and that they, through undue persuasion induced him to commit the act which he would not have otherwise committed. “The only evidence presented in support of the defense of entrapment is defendant’s testimony that he initially resisted the agent’s request and made the sale only after the repeated and persistent requests of the agent. ‘Because the phrase “undue persuasion (as used in Georgia’s entrapment statute OCGA § 16-3-25) is used in context with “incitement or deceitful means,” it must mean something more than repeated requests for contraband drugs knowingly owned and possessed by one who at first demurs to the disposition of his drugs.’ Garrett v. State, 133 Ga. App. 564, 566 (211 SE2d 584) (1974). Accord Johnson v. State, 147 Ga. App. 92 (248 SE2d 168) (1978). Therefore, defendant’s testimony does not establish the defense of entrapment.” McQueen v. State, 185 Ga. App. 485 (364 SE2d 617). There was sufficient competent evidence to enable a rational trier of fact to find defendant guilty as charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Davis v. State, 189 Ga. App. 412, 413 (1) (376 SE2d 421).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0001.
    PUGH v. THE STATE.
    (382 SE2d 143)
   Birdsong, Judge.

Appellant is charged with the offense of voluntary manslaughter of her husband. The district attorney was advised that Mrs. Pugh intended to raise the “battered woman” syndrome as a defense. The State filed a motion in limine “to require a specific proffer of evidence from the defendant on said Syndrome and to rule such evidence inadmissible. ...” Pugh’s response admitted she would offer such evidence as one of her defenses. The State filed an amended motion in limine to “totally exclude evidence of the ‘battered woman’ syndrome if tendered by the defendant as part of a defense of justification by self-defense . . . and . . . the defendant not be allowed to tender evidence of the ‘battered woman’ syndrome for any other purpose unless the dictates of Rule 31.4 of the Uniform Court Rules [“Notice of Intention of Defense to Raise Issue of Insanity, Mental Illness or Mental Competency”] are complied with in full.” The trial court held that “ [although this characterization of one suffering from the ‘battered woman syndrome’ does not conclusively fall within the scope of insanity, mental incompetence, or mental illness contemplated by the Uniform Superior Court Rule 31.4, it does suggest the possibility of a mental deficit which might fall within any of the three areas of diminished capacity mentioned in the rule.” The trial court granted the “State’s Motion in Limine” and we granted interlocutory appeal to review this issue. Held:

The effect posited by the approval of the State’s motion is to totally exclude any evidence of appellant as to whether she comes within the parameters of the “battered woman” syndrome. Appellant is charged with the voluntary manslaughter of her husband. A possible defense is self-defense. “ ‘ “To establish [a] plea of self-defense, the defendant must show that the circumstances were such as to excite the fears of a reasonable man that his life was in danger; a mere unreasonable apprehension or suspicion of harm being insufficient.” ’ ” Wells v. State, 186 Ga. App. 62, 63 (366 SE2d 397). In Smith v. State, 247 Ga. 612 (277 SE2d 678), the Supreme Court thoroughly examined the “battered woman” syndrome and concluded “that the battered woman becomes increasingly afraid for her own well-being, and that the primary emotion of a battered woman is fear.” Id. at 614. The battered woman syndrome evidence was found admissible. This same issue was re-examined in Sanders v. State, 251 Ga. 70 (303 SE2d 13), in which it was stated: “We have held that under appropriate circumstances a woman who kills her husband or boyfriend and raises the defense of self-defense may, as evidence of whether she acted in fear of her life, have an expert witness describe the ‘battered woman syndrome,’ apply that model to the facts, and conclude that the woman falls within the profile.” Id. at 74. Hence, if appellant intends to raise the defense of self-defense (OCGA § 16-3-21 (a)), evidence of the “battered woman” syndrome would be relevant.

The Supreme Court has also held, in Chapman v. State, 258 Ga, 214, 216 (367 SE2d 541), that “[a] defendant claiming self-defense based on the battered woman syndrome may, by her own testimony, coupled with that of an expert, make the prima facie showing required for the admission of the victim’s general character for violence.” Thus, if a defendant can establish she is a “battered woman,” the Supreme Court has held the “primary emotion of a battered woman is fear,” and because “fears of a reasonable” person is relevant to establish a claim of self-defense, such evidence is admissible. Sanders, supra.

The State argued to the trial court that “the Supreme Court in Smith [and Chapman] missed the mark” and “[t]he battered woman syndrome defense is, therefore, really a defense of diminished responsibility and although Georgia does not recognize the defense under that name it is implicit in the authorized verdict of Guilty But Mentally 111 pursuant to OCGA § 17-7-131.” The trial court granted the State’s motion which excludes all evidence of the battered woman syndrome, even if appellant raises the issue of self-defense.

We need not determine whether the “battered woman syndrome” also raises an issue of insanity, mental illness, or mental incompetency, because the Supreme Court has specifically held that evidence of the battered woman syndrome is independently admissible in conjunction with a claim of self-defense.

Professor Wigmore observed that the possible multiple use of one evidentiary fact is a common problem in the field of evidence (1A Wigmore on Evidence 1869, § 215), and “when an evidentiary fact is offered for one purpose and becomes admissible by satisfying all the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable to it in some other capacity and because the jury might improperly consider it in the latter capacity.” 1 Wigmore on Evidence 694, § 13. Placing this rule in the factual context of this case: When the evidentiary fact of the battered woman syndrome is properly established by competent evidence, it is admissible in conjunction with the defense of self-defense, and it is not inadmissible because appellant has not satisfied the evidentiary rules to admit the same evidence in relation to a claim of insanity, mental illness, or mental incompetency. Georgia law is in agreement with Wigmore. “Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” Fidelity & Deposit Co. v. Nisbet, 119 Ga. 316 (4) (46 SE 444); accord Wyatt v. State, 206 Ga. 613, 616-617 (57 SE2d 914); Clifton v. State, 187 Ga. 502 (5) (2 SE2d 102); Gordon v. Gordon, 133 Ga. App. 520, 522 (211 SE2d 374); Mutual Benefit &c. Assn. v. Hickman, 100 Ga. App. 348, 365 (4) (111 SE2d 380); Green’s Ga. Law of Evidence 18, § 11.

Decided April 25, 1989.

Harry M. Moseley, for appellant.

Rafe Banks III, District Attorney, for appellee.

Perhaps the rule is best stated in Orr v. Dawson Telephone Co., 35 Ga. App. 560 (2) (133 SE 924): “The fact that evidence may be inadmissible for one purpose does not warrant its exclusion when it is relevant and admissible for another purpose.” Accordingly, as the evidence of the “battered woman syndrome” is admissible for the purposes of establishing (1) reasonable fear of the wife in connection with a claim of self-defense (Smith, supra), and (2) general character for violence of the husband (Chapman, supra), such evidence may not be excluded because appellant failed to satisfy the basis for admissibility of the same evidence as relevant to insanity, mental illness, or mental incompetency (Rule 31.4 of the Uniform Rules).

We emphasize the fact that such evidence is admissible in connection with an issue of self-defense, does not mean that it can be used to raise the issues of insanity, mental illness, or mental incompetency — without prior compliance with Rule 31.4. The jury may properly be instructed on the limited purpose of admissibility of the evidence relating to the “battered woman syndrome.” Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 687 (178 SE2d 543).

Judgment reversed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0149.
    FLOWERS v. THE STATE.
    (381 SE2d 768)
   Birdsong, Judge.

Michael H. Flowers brings this appeal from his conviction for burglary. Flowers was jointly indicted for this offense with his wife Donna, his next-door neighbor John Overby, and Dean Hartley. All of appellant’s co-indictees testified for the State.

Appellant’s wife testified that on the evening of the Whitfield County landfill office burglary, their next-door neighbor, Overby, came over to their house “around ten-thirty, eleven o’clock” and asked her husband “to go outside in the back yard to talk.” They talked for 30-45 minutes. Appellant’s brother, Eric, and Dean Hartley, who had been at Overby’s house, came to their house and said: “We’re ready to go.” All five of them got in her husband’s car and followed the directions of Overby. They stopped on the side of a road and she “didn’t see no houses. . . .” Eric, Overby, and Hartley left the car and burglarized the Whitfield County landfill office. Overby and Eric Flowers entered pleas of guilty to the burglary. Hartley said he thought they were going to get some parts for Overby’s car.

Appellant told a detective that when the three men returned to the car they had “a cash box and some jumpsuits and some other things.” The landfill manager said that his office and a tool room had been broken into and automotive filters, transmission fluid, some “coveralls,” and a carton of cardboard packages of grease were taken.

The stolen property was taken back to Overby’s house, but appellant’s wife said she found a pair of “overalls” on her porch the next morning. Overby testified that after they returned to his house they “stayed there a couple [of] hours” and then went to Chatsworth and burglarized the trailer parked next to the Sumac Church. A television set and VCR were taken and placed in appellant’s car. The television set was recovered from the appellant’s house.

Overby said he did not tell appellant he was going to burglarize the landfill or the church. Hartley testified that he did not hear Overby tell the appellant about the burglaries.

Appellant’s motion for directed verdict was denied. The jury reached a verdict of guilty and this appeal followed. Held:

1. Although appellant’s enumeration of error is based on the refusal of the trial court to grant his motion for directed verdict, the remainder of the enumeration and the argument in the brief is directed toward insufficiency of the evidence to convict. The tests to be applied to a denial of a motion for directed verdict (“[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ as to the entire offense . . . the court may direct the verdict of acquittal. . . .” OCGA § 17-9-1 (a)) and sufficiency of the evidence (whether “a reasonable trier of fact could rationally find proof of guilt beyond a reasonable doubt. . .” Adams v. State, 187 Ga. App. 340, 344 (370 SE2d 197) are distinguishable.

This court will not overturn the decision of the trial court denying a motion for directed verdict of acquittal where “[w]e cannot say that there was ‘no conflict in the evidence and the evidence . . . demanded) a verdict of acquittal.’ ” Conger v. State, 250 Ga. 867, 870 (301 SE2d 878). The evidence of record did not demand a verdict of acquittal. Thus denial of the motion for directed verdict was not error.

Whether in a specific case the circumstances are sufficient to exclude every reasonable hypothesis save that of guilt of the accused is primarily a question for the jury. Henderson v. State, 170 Ga. App. 170 (316 SE2d 814). Where the jury is authorized to find the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict will not be disturbed by an appellate court unless such verdict is unsupportable as a matter of law. Jones v. State, 165 Ga. App. 36, 38 (299 SE2d 576); Slack v. State, 159 Ga. App. 185, 189-190 (283 SE2d 64). Construing the evidence in the light most favorable to the verdict, we are convinced that a rational trier of fact could have found the appellant guilty of the offense of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hence, the evidence admitted at trial was not insufficient as a matter of law.

2. The trial court allowed in evidence the circumstances of the burglary at the Sumac Church. Appellant moved to strike this evidence and the court denied the motion. On appeal it is argued that this evidence “is itself insufficient to show . . . participation or criminal intent on the part of appellant.” We do not agree.

Evidence of other criminal acts of a defendant is generally inadmissible because it tends to place a defendant’s character in evidence in violation of OCGA § 24-9-20 (b). Sablon v. State, 182 Ga. App. 128, 130 (355 SE2d 88). However, evidence of an independent crime is admissible if (1) the defendant was in fact one of the perpetrators, and (2) there is sufficient similarity or connection between the independent crime and the offense charged so that proof of the independent crimes tends to prove the offense charged. Mincey v. State, 257 Ga. 500, 505 (360 SE2d 578). Once identity of the perpetrator is shown, the “other crime” becomes admissible for the purposes of showing identity, motive, plan, scheme, bent of mind, modus operandi, and course of conduct. Cook v. State, 185 Ga. App. 585 (2) (364 SE2d 912); Strobhert v. State, 184 Ga. App. 615, 617-618 (362 SE2d 99). And, this rule is not changed where the “other offense” is subsequent to the offense charged. Worthy v. State, 180 Ga. App. 506, 508 (349 SE2d 529). The similarities between the landfill robbery and the Sumac Church robbery are striking. The appellant and the principal actors of both burglaries were the same. Appellant used his car and was the driver for both offenses. Appellant took the principal actors to a deserted place for both burglaries, shortly before and after midnight, and watched as the burglars placed the stolen goods in his car. One pair of the stolen “coveralls” from the landfill ended up on his porch and the stolen television ended up in his house. The trial court is granted a wide discretion in the admission of evidence and an appellate court should not reverse his finding unless he has abused that discretion. Haynes v. State, 180 Ga. App. 202, 203 (349 SE2d 208). We have found no abuse of discretion. See Crews v. State, 185 Ga. App. 494, 495 (364 SE2d 625).

Moreover, there exists a separate reason for sustaining the ruling of the trial court. According to Overby, appellant drove his car to the landfill with Overby, Eric Flowers and Dean Hartley as passengers, where the burglary was committed close to midnight. The burglars loaded the stolen property into appellant’s car and returned to Overby’s house where they unloaded the stolen property. After a couple of hours, the appellant drove his car, with Eric Flowers, Dean Hartley and Overby as passengers to the Sumac Church where appellant again remained in his car while Overby and the others committed that burglary and loaded the stolen goods into his car.

Decided April 25, 1989.

Ralph M. Hinman III, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

The State is entitled to present evidence of the entire res gestae of a crime even though the defendant is not charged with every crime committed during the entire criminal transaction. Satterfield v. State, 256 Ga. 593, 598 (b) (351 SE2d 625). This is permissible because “[circumstances forming a part or continuation of the main transaction are admissible as res gestae. [Cits.]” Bostic v. State, 183 Ga. App. 430, 431 (359 SE2d 201); accord Shouse v. State, 231 Ga. 716, 719 (8) (203 SE2d 537); Fuqua v. State, 183 Ga. App. 414, 419 (359 SE2d 165). Accordingly, the evidence showing a continuation of the first criminal scheme is admissible and this enumeration is without merit.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0253.
    HARRIS v. THE STATE.
    (381 SE2d 602)
   Pope, Judge.

Defendant appeals his conviction for burglary, arguing that certain statements made by witnesses for the prosecution improperly placed his character into evidence.

A police officer testified that she obtained a photograph of defendant, for a photographic lineup shown to the victim, from the Atlanta Police Department’s identification section. Introduction into evidence of a “mug shot” photograph of a defendant bearing notations which indicate a prior arrest “is the equivalent of oral testimony establishing [defendant’s] arrest for a prior crime and would therefore impermissibly place his character in evidence.” Roundtree v. State, 181 Ga. App. 594 (353 SE2d 88) (1987). However, a mere reference to the fact that defendant’s photograph was already in police records, without more, does not inject the defendant’s character into evidence. Woodard v. State, 234 Ga. 901 (2) (218 SE2d 629) (1975); Woodard v. State, 155 Ga. App. 533 (1) (271 SE2d 671) (1980).

Decided April 25, 1989.

John J. Martin, Jr., for appellant.

Robert F. Mumford, District Attorney, for appellee.

During questioning concerning the circumstances of defendant’s arrest, the officer made a non-responsive statement that he noted on his arrest report the strong odor of alcohol on defendant’s breath. The court denied defendant’s motion for mistrial, but gave curative instructions to the jury to disregard the statement. A non-responsive reference by an officer-witness to criminal conduct of the defendant may be so prejudicial as to require mistrial. See Boyd v. State, 146 Ga. App. 359 (2) (246 SE2d 396) (1978). However, the fact that defendant had alcohol on his breath is not a reference to criminal conduct. The decision of whether a non-responsive prejudicial statement by a police officer at trial is so prejudicial as to warrant a mistrial is left to the discretion of the trial court and the court’s denial of a motion for mistrial will be overturned only if the trial court abused its discretion. Sabel v. State, 250 Ga. 640 (5) (300 SE2d 663) (1983). An objectionable non-responsive statement by a police officer at trial does not require the granting of a mistrial where, as here, there was strong evidence to support the conviction and where the trial court gave curative instructions. Id.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0231.
    HOUSING AUTHORITY OF SAVANNAH v. GILPIN + BAZEMORE/ARCHITECTS & PLANNERS, INC.
    (381 SE2d 550)
   Pope, Judge.

Appellant Housing Authority of Savannah was named as one of several defendants to a wrongful death action alleging a tenant at one of appellant’s apartment buildings died of carbon monoxide poisoning as a result of the faulty design and construction of a heating system. Appellant filed a third-party complaint against appellee Gilpin + Bazemore/Architects & Planners, Inc. The third-party complaint alleged appellee contracted with appellant “to furnish all the professional services required for the design, architectural structural engineering [etc.]” for the renovation of the apartment building and was thus jointly liable with appellant for any damages which might be awarded to plaintiff. The lower court granted appellee’s motion to dismiss for appellant’s failure to file the affidavit of an expert witness contemporaneously with the third-party complaint as required by OCGA § 9-11-9.1. We granted the petition for interlocutory appeal of appellant Housing Authority.

Decided April 5, 1989

Rehearing denied April 27, 1989

Willis J. Richardson, Jr., for appellant.

Adams, Gardner, Ellis & Inglesby, George L. Lewis, Morton G. Forbes, James M. Thomas, A. Martin Kent, Oliver, Maner & Gray, Wendy W. Williamson, Thomas A. Withers, for appellee.

Appellant argues the requirement of OCGA § 9-11-9.1 does not apply to this case because its third-party complaint is not a professional malpractice claim but is a claim for contribution as a joint tortfeasor. However, the inescapable fact is that appellee is liable, if at all, only because of the alleged negligent execution of its contract for professional architectural and engineering services. Architecture is a professional service which must be exercised with that degree of care and skill as is ordinarily employed by the profession under similar conditions and circumstances. Hudgins v. Bacon, 171 Ga. App. 856, 859 (321 SE2d 359) (1984). “[OCGA § 9-11-9.1] applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” Barr v. Johnson, 189 Ga. App. 136, 137 (375 SE2d 51) (1988). If appellant’s third-party claim is not a claim for professional malpractice, then it is no claim at all.

We reject appellant’s argument that the third-party complaint cannot be considered a claim for professional malpractice because it was brought against an entity which is not organized as a professional corporation. By law, a corporation may not be registered to practice architecture but may practice only through registered individuals. OCGA § 43-4-10 (c). Thus, the fact that appellee is not a professional corporation as defined by OCGA § 14-7-1 et seq. does not mean it is incapable of committing and being liable for professional malpractice by and through its individual agents.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0607.
    JONES v. JONES.
    (381 SE2d 565)
   Deen, Presiding Judge.

In January of 1984 appellant Gary Jones was appointed guardian of the person and property of his father, appellee Woodrow W. Jones, a widower of some sixty-seven years whose mental and physical condition had deteriorated following a stroke several years previously. In May of 1988 the elder Jones, appellee here, petitioned the Muscogee County Probate Court for termination of the guardianship. After a hearing, the petition was granted and appellee’s former rights and powers, which had been removed in 1984 pursuant to OCGA § 29-5-7 (d), were restored. Gary Jones appeals from this judgment and order, enumerating as error (1) the trial court’s alleged failure to take into consideration his father’s physical condition, (2) the court’s failure to notify appellant that the court had appointed a physician to perform an evaluation of appellee prior to the hearing, (3) the court’s failure to make “adequate” findings of fact and conclusions of law, and (4) the court’s dissolution/termination of the guardianship. Held:

1. Our scrutiny of the hearing transcript, the deposition testimony, and other portions of the record indicates that the trial court carefully inquired into and took into consideration medical evidence supplied by the examining physician and other witnesses, and also conducted a face-to-face interview with appellee in which he had opportunity to observe his appearance, speech, and demeanor. Thus the court had available, and evidently considered, ample evidence of appellee’s physical condition, in compliance with OCGA § 29-5-1 and other relevant statutory provisions. This enumeration is without merit.

2. Likewise without merit is appellant’s second enumeration. We know of no provision in Georgia law, and appellant cites none, which requires notice of the sort advocated by appellant. Moreover, the record shows that appellant did receive notice of the physical evaluation on May 25, 1988, fifteen days before the scheduled evaluation by the designated licensed physician. OCGA § 29-5-6 (c) (1). This enumeration has no merit.

3. The record reveals that in his October 25, 1988, order terminating the guardianship, the trial court made findings of fact and conclusions of law, as required in OCGA § 9-11-52. The record further reveals that there was more than a sufficiency of evidence which would support the trial court’s findings of fact and authorize his conclusions of law, and that, moreover, appellant’s counsel made no request for additional or more specific findings of fact and expressly approved the court’s final order. Appellant’s third enumeration is also without merit.

4. Since appellant’s fourth enumeration is a sort of generalized “catch-all” allegation, the validity of which depends ultimately upon the validity of the first three enumerations of error, it follows that there is nothing in the record which would demand the denial of appellee’s petition and the perpetuation of the guardianship. Furthermore, it is the guardian who has the burden of proof, OCGA § 29-5-9 (b), and the trial court’s final order recites that he has reviewed the hearing transcript and the record. This enumeration is devoid of merit.

Decided April 12, 1989

Rehearing denied April 27, 1989.

James A. Elkins, Jr., for appellant.

Robert G. Jones III, for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0394.
    IGLESIAS v. THE STATE.
    (381 SE2d 604)
   Sognier, Judge.

Jorge Andres Iglesias appeals from his conviction for cocaine trafficking and possession of cocaine with intent to distribute.

1. Appellant enumerates the general grounds, and also contends his conviction and sentence for possession with intent to distribute were imposed in violation of OCGA § 16-1-7. The evidence adduced at trial reveals that a narcotics unit of the Atlanta Police Bureau, acting upon an informant’s tip, obtained and executed a search warrant for an apartment leased to appellant. Appellant was found standing between the kitchen and living room, and a third party was in the bedroom. The detectives testified that they discovered approximately 700 grams of a white powder, which later proved to be cocaine, in three large plastic ziplock bags in the kitchen, one of which was open on the kitchen counter next to an electric scale. Investigator Monica Lawson stated that the search also uncovered a large plastic bag containing a number of smaller plastic bags, which she testified were often used to distribute cocaine.

We agree with appellant that under the facts of this case he could not be convicted of both cocaine trafficking and also possession of cocaine with intent to distribute. As the State has conceded, the charge of possession with intent to distribute was a lesser included offense of trafficking as a matter of fact because the evidence required to convict appellant of trafficking was the only evidence showing possession with intent to distribute, see OCGA § 16-1-6 (1); State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475) (1974), and thus the conviction for possession with intent to distribute must be reversed and the sentence vacated. Collier v. State, 244 Ga. 553, 563-565 (6) (261 SE2d 364) (1979). However, we do find the evidence sufficient to authorize the conviction for cocaine trafficking under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by denying his motion to suppress because the affiant’s testimony at the motion hearing concerning the length of time she had known the informant allegedly contradicted her affidavit, the underlying basis for the confidential informant’s knowledge was not disclosed, and that information was not corroborated. However, the record reveals that appellant did not raise these arguments before the trial court, but instead based his motion to suppress solely on his contention that documents obtained in the search purportedly disproved allegations in the affidavit, a matter not enumerated as error in this court. “ ‘It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal. (Cits.)’ [Cits.]” Napier v. State, 184 Ga. App. 770, 772 (3) (362 SE2d 501) (1987); see Moore v. State, 176 Ga. App. 251-252 (1) (335 SE2d 716) (1985).

Decided April 27, 1989.

Penny A. Penn, for appellant.

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

Judgment affirmed in part and reversed in part.

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


text:
    A89A0535.
    ATLANTA SIX FLAGS PARTNERSHIP v. HUGHES.
    (381 SE2d 605)
   McMurray, Presiding Judge.

Plaintiff, as seller, and defendant, as purchaser, entered into a real estate sales contract for the sale and purchase of 3.1358 acres of land in Cobb County, Georgia. In pertinent part, the contract provides the following: “SECTION 1. PURCHASE AND SALE. Seller hereby sells and agrees to convey and Purchaser hereby purchases and agrees to pay for that certain real property located in Cobb County, Georgia . . . SECTION 2. PURCHASE PRICE AND PAYMENTS. . . . The purchase price for the Property shall be . . . $650,000.00 . . . payable at the Closing ... in cash, including the Earnest Money Deposits. SECTION 3. EARNEST MONEY DEPOSIT. 3.1 Amount and Form of Deposit. As consideration for Seller’s executing this Agreement, Purchaser has concurrently herewith delivered to Chicago Title Insurance Company . . . cash in the amount of . . . $30,000.00 . . . which shall be considered as a portion of the purchase price. If the purchase and sale of the Property is not closed because of Seller’s failure to timely perform its obligations or satisfy its conditions as set forth in this Agreement, the Earnest Money Deposit shall be refunded to Purchaser on demand. In all other respects, the Earnest Money Deposit shall be nonrefundable and may be retained by Seller as liquidated damages, except as may otherwise be specified herein. SECTION 4. CONDITIONS. 4.1 Feasibility Study. Purchaser’s obligations hereunder are conditioned upon Purchaser’s completion and approval of a feasibility study with respect to Purchaser’s intended use of the Property.. . . This condition shall be deemed satisfied unless Purchaser gives Seller written notice of termination of this Agreement within FORTY FIVE (45) CALENDAR DAYS from the date of mutual acceptance of this agreement (hereinafter referred to as the “Termination Notice”). If the Termination Notice is received by Seller within said period, this Agreement shall be considered null and void, the Earnest Money Deposit shall be returned to Purchaser except for One Thousand and No/100 ($1,000.00) Dollars which Seller shall retain as consideration for having taken the property off the market pursuant to this Agreement and, except as provided . . . neither party shall have any further rights or obligations hereunder. ... 6.2 Title Company and Closing Date. The closing of this transaction (the “Closing”) shall be held on May 15, 1987 at the office of the Title Company. ... 9.3 Entire Agreement. Time is of the essence of the Agreement. This Agreement contains the entire understanding between the parties and supercedes any prior understandings and agreements between them respecting the subject matter hereof. There are no other representations, agreements, arrangements or understandings, oral or written, between and among the parties hereto or any of them, relating to the subject matter of this Agreement. No amendment of or settlement to this Agreement shall be valid or effective unless made in writing and executed by the parties hereto. ... 9.4 Mutual Acceptance. The date of mutual acceptance of this offer is agreed to be the date the Agreement is received by the Title Company.”

The agreement was received by the Title Company on February 18, 1987. The earnest money did not accompany it. Subsequently, on March 26, 1987, the Title Company received the earnest money from defendant. It also received a letter from defendant which reads, in part: “Just after you received the Escrow account instruction letter, we encountered several problems of which we were not aware ... We have since been working with Mrs. Mary McArthur, of the [plaintiff], to solve these problems and we believe them to now be resolved. According to the Purchase and Sale Agreement, and our attorney, we believe the effective date of this contract to be the date the Earnest Money deposit of $30,000.00 is received by your company and acknowledged by your signature . . . Therefore, we believe this date needs to be March 26, 1987. If you are in agreement with our attorney’s opinion, please deposit the Earnest Money into your Escrow account. If not, please let the [plaintiff], and myself, know immediately.”

Because of the possible dispute between the parties concerning the effective date of the agreement, the Title Company placed the earnest money in its custodial account and awaited instructions. In the meantime, plaintiff responded as follows to defendant’s position statement: “The escrow agent advises us that your deposit instructions infer that the timetable contemplated by the Agreement is to likewise commence with said deposit. This is not in compliance with the Agreement, which clearly provides that the Agreement and the time frames contained therein commence upon the date the Agreement is received by the title company (Section 9.4), in this case February 18, 1987. ... We cannot agree to a unilateral amendment of the Agreement.”

On April 3, 1987, defendant spoke with Mr. Carl Parker, a representative of plaintiff, via telephone. At that time, the problems which defendant encountered with respect to his use of the property were solved. Nevertheless, defendant asked Parker to extend the effective date of the contract to March 26, 1987, because of the problems he had encountered. Based on the conversation which followed, defendant “felt” that he and Parker had an “understanding” that defendant was not going to close unless the effective date of the contract was moved up. Defendant acknowledged, however, that Parker did not say he “will extend it.” Rather, according to defendant, Parker said he would get back with defendant the next week. (Parker disagreed with defendant’s version of the conversation. He interpreted defendant’s request for an extension of the effective date as a “negotiating ploy” to gain additional time. And he averred that at the conclusion of the conversation he told defendant he should take another look at the situation if he was thinking about terminating the contract.)

A few days later, on April 6,1987, defendant stopped payment on the escrow money check. However, defendant never sent a written termination notice in accordance with the terms of the agreement.

On April 7, 1987, plaintiff sent defendant a letter in which it informed defendant of its intent to close pursuant to the terms of the agreement. One day before the scheduled closing, defendant notified a representative of plaintiff that he did not intend to appear at the closing. In fact, he did not do so.

Thereafter, plaintiff brought this breach of contract action against defendant. It sought, inter alia, liquidated damages in the amount of $30,000 pursuant to the agreement. Defendant answered the complaint and denied liability. Thereafter, following discovery, plaintiff moved for partial summary judgment upon the liquidated damages claim. The superior court denied plaintiff’s motion, ruling, sua sponte, that a question of fact exists as to whether the contract was supported by consideration. In this regard, the superior court opined that defendant’s failure to pay the earnest money deposit may have resulted in a “no-contract” situation.

We granted plaintiff’s application for interlocutory review and this appeal followed. Held:

1. Plaintiff’s promise to sell the property was supported by defendant’s promise to buy it and the mutual promises and obligations of the parties constituted sufficient consideration for the contract. OCGA § 13-3-42; Giant Peanut &c. Co. v. Long Mfg. Co., 129 Ga. App. 685, 687 (201 SE2d 26). Thus, defendant’s failure to pay the earnest money did not result in a failure of consideration. See Mangum v. Jones, 205 Ga. 661, 666 (54 SE2d 603).

2. Pursuant to the contract, defendant’s obligation to purchase the property was conditioned upon the completion and approval of a feasibility study. The condition was deemed satisfied, however, unless defendant gave plaintiff a written termination notice within 45 days of the date of mutual acceptance. The date of mutual acceptance was February 18, 1987. Thus, if defendant was to terminate the contract, it was incumbent upon him to give plaintiff written notice of termination by April 6, 1987. He failed to do so.

“It is the duty of courts to construe and enforce, contracts as made, and not to make them for the parties. [Defendant] in the case must stand upon the contract as made by the parties.” Carr v. Louisville &c. R. Co., 141 Ga. 219, 222 (80 SE 716). Having failed to give plaintiff written notice of termination, defendant was obligated to stand upon the contract as made and purchase the property. Defendant breached the contract by failing to make that purchase.

Defendant argues that, pursuant to his telephone conversation with Parker on April 3, 1987, the parties orally agreed to terminate the contract. This argument is flawed. Defendant only demonstrated a unilateral intention to vary the terms of the contract — he failed to demonstrate a mutual intention to do so. See Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (4), 703 (58 SE 200); Ryder Truck Lines v. Scott, 129 Ga. App. 871, 873 (4) (201 SE2d 672). Besides, an oral agreement to modify a written contract for the sale of land is unenforceable. Sanders v. Vaughn, 223 Ga. 274 (1) (2) (154 SE2d 616).

3. “A contractual provision requiring payment of a stipulated sum by one of the parties upon termination or cancellation of the contract will be treated as an enforceable liquidated damages provision rather than an unenforceable penalty only if all three of the following factors are present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than a penalty; and third, the stipulated sum must be a reasonable pre-estimate of the probable loss resulting from such a breach.” Broadcast Corp. of Ga. v. Subscription Television &c., 177 Ga. App. 199, 200 (338 SE2d 775). This tripartite inquiry was enunciated by the Supreme Court in Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340).

Decided April 27, 1989.

Swift, Currie, McGhee & Hiers, John P. MacNaughton, C. G. Jester, Jr., for appellant.

Mark W. Crouch, for appellee.

Although no genuine issue of material fact exists as to whether defendant breached the contract, we cannot say that, as a matter of law, the liquidated damages provision of the contract can be enforced against him. “[T]he enforceability of a liquidated-damages provision in a contract is a question of law for the court. Martin v. Lott, 144 Ga. 660, 665 (87 SE 902) (1916). However, in deciding that question, the court must make the tripartite inquiry outlined in Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976), which necessarily requires the resolution of questions of fact.” Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222).

In the case sub judice, plaintiff has made no affirmative showing with regard to the tripartite factual questions outlined above. Compare Thomas B. Hartley Constr. Co. v. Liberty Life Ins. Co., 187 Ga. App. 849 (371 SE2d 657), reversed in Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., supra, in which an affidavit pertaining to the tripartite factual analysis was submitted in support of a motion for summary judgment. Accordingly, the denial of plaintiff’s motion for partial summary judgment upon, the liquidated damages claim was not error.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0571.
    HOWARD v. THE STATE.
    (382 SE2d 149)
   McMurray, Presiding Judge.

Defendant was indicted for kidnapping and child molestation. The evidence at a jury trial demonstrated that defendant met the victim, an 11-year-old child, at about 4:00 in the afternoon on February 7, 1988, at a convenience store located near the victim’s home. The victim left the store with defendant and defendant forced the victim against her will across a highway and into bushes “behind some people’s houses” and committed acts which constitute child molestation as defined in OCGA § 16-6-4. Defendant was found guilty on both counts of the indictment and this appeal followed. Held:

Decided April 27, 1989.

Lori C. Obenauf, for appellant.

Willis B. Sparks III, District Attorney, Graham A. Thorpe, Thomas J. Matthews, Assistant District Attorneys, for appellee.

1. In his first four enumerations of error, defendant asserts the general grounds and argues that the victim’s uncorroborated testimony is insufficient to support his conviction. This contention is without merit. “Corroboration is not required for a conviction of child molestation. Scales v. State, 171 Ga. App. 924 (2) [(321 SE2d 764)].” Weeks v. State, 187 Ga. App. 307 (1), 308 (370 SE2d 344).

In the case sub judice, the victim testified and gave a detailed account of how defendant forced her across a busy highway and into bushes and committed acts which constitute child molestation as defined in OCGA § 16-6-4. The victim’s sister and a convenience store clerk corroborated much of the victim’s testimony. Physical evidence discovered in the victim’s clothing shortly after the incident indicated that the victim had been earlier disrobed in an outside area similar to the area described by the victim as the area of the incident. This evidence and evidence showing that defendant attempted to elude law enforcement officers before his arrest was sufficient to support the jury’s'finding that defendant was guilty, beyond a reasonable doubt, of kidnapping and child molestation. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560). See Weeks v. State, 187 Ga. App. 307 (1), supra.

2. Lastly, defendant contends the “trial court erred in denying [his] amended motion for new trial because [defendant’s] due process rights were harmed beyond a reasonable doubt by the prosecutor’s use of [defendant’s] post-arrest silence for both impeachment purposes and in rebuttal.”

The trial transcript reveals that no objection was made to the challenged cross-examination of defendant. Consequently, it is now too late to urge such an objection. Bailey v. State, 249 Ga. 535, 539 (4) (291 SE2d 704).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Benham, Judge.

text:
    A89A0025.
    DIXSON v. THE STATE.
    (382 SE2d 357)
   Benham, Judge.

A jury convicted appellant of giving a false name to a law enforcement officer (OCGA § 16-10-25). He appeals from the denial of his motion for new trial. We affirm.

1. Appellant asserts as error the trial court’s denial of his motion to suppress the introduction into evidence of his driver’s license and airline ticket, which were obtained in the course of the investigation that led to his arrest. We find no error. Appellant made his suppression motion orally, and for the first time, during the trial. OCGA § 17-5-30 (b) requires that the motion “shall be in writing and state facts showing that the search and seizure were unlawful.” “Although the Code does not provide for a specific time when such motion must be filed, it is clear that it shall be filed before trial as the ‘purpose is to avoid the interruption of the trial for the purpose of investigating the collateral issue of the legality of the means by which the evidence was obtained.’ [Cits.]. ... ‘[A] failure to interpose a timely motion to suppress . . . constitutes a waiver of the constitutional guarantee with respect to the search and seizure in question.’ [Cits.]. . . . And, motions made during trial are properly held to be dilatory. [Cit.J” Stansifer v. State, 166 Ga. App. 785, 788 (305 SE2d 481) (1983). Since appellant did not show that he became aware of the allegedly illegal seizure at such a late hour that a written motion was impossible (see Rucker v. State, 250 Ga. 371 (11) (297 SE2d 481) (1982)), the trial court did not err in its ruling.

Moreover, the record shows that appellant’s suppression motion was made only with regard to the driver’s license. His objections to the admission of the airline ticket were that it was not a “complete package” and that there had been a break in the chain of custody, which objections the trial court overruled. Since the “scope of [our] review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed . . .” (Wilson v. State, 145 Ga. App. 315, 323 (244 SE2d 355) (1978)), we will not consider the issue of the admission of the ticket.

2. Appellant contends that the trial court improperly charged the jury on the law of criminal intent as it related to the elements of a crime. He argues that the trial court should have instructed the jury on the specific intent of the crime with which appellant was charged, i.e., “the intent of misleading the officer as to his identity” (OCGA § 16-10-25); the trial court only charged the jury regarding general criminal intent. See OCGA § 16-2-1. Appellant did not request the charge that he complains was not given. “OCGA § 5-5-24 (b) places a duty on the defendant to request jury instructions. The defendant is relieved of this duty only ‘in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.’ [Cit.]” Carr v. State, 183 Ga. App. 36 (3) (357 SE2d 816) (1987). The trial court’s charge on general criminal intent, when considered together with the charges on the elements of the offense, including intent, and the State’s burden of proving each element of the offense provided sufficient guidelines to the jury. “The omission complained of by the defendant herein does not fall into [the clearly harmful and erroneous] category; consequently, since he did not request the charge in question, he cannot complain. [Cit.]” Id.

Decided April 3, 1989

Rehearing denied April 28, 1989.

Lawson, Washington & Thornton, Charles S. Thornton, for appellant.

Keith Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.

3. During the testimony of one of the State’s witnesses, appellant moved for a mistrial, arguing that the State had used a statement at trial that it had not included in the summary produced in response to appellant’s request under OCGA § 17-7-210. The statement concerned the amount of money appellant had in his possession at the time of his arrest. The State argued that the testimony was given inadvertently, but conceded that a curative instruction to the jury might be appropriate. The trial court denied the motion for mistrial, and appellant took the position that he did not want the court to give curative instructions. “ ‘The grant or denial of a mistrial is within the discretion of the trial judge and will not be grounds for reversal on appeal unless a mistrial is mandated to ensure a fair trial. [Cit.]’ ” Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986). We have reviewed the record and find no ground for reversal. Appellant’s statement as to the amount of money he had did not tend to prove or disprove his guilt of the crime with which he was charged. Since “ ‘there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.’ [Cit.]” Wallin v. State, 248 Ga. 29, 33 (279 SE2d 687) (1981). See also Russell v. State, 183 Ga. App. 209 (1) (358 SE2d 631) (1987).

Judgment affirmed.

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