text:
    A92A1854.
    CAMELOT CLUB CONDOMINIUM ASSOCIATION, INC. et al. v. BONNER.
    (428 SE2d 625)
   Johnson, Judge.

This is an appeal from a denial of a motion for summary judgment. Construing the evidence in the light most favorable to Deborah Bonner, the respondent, the facts are as set out below.

Bonner lived in a unit at Camelot Club, a residential condominium complex. At the entrance to the complex is a gate operated by an attendant. The condominium rules and gate attendant procedures provide that no guest will be permitted to enter Camelot unless the attendant telephones the resident being visited and receives the resident’s authorization for the guest to enter. Camelot asserts that an exception to this procedure is its unwritten policy that employees shall cooperate with the police and that a police officer, upon showing his badge to the gate attendant, shall be allowed to enter the complex without permission from a resident.

Bonner dated Anthony Lawhorn, a police officer employed by the City of College Park. Lawhorn had visited Bonner at Camelot on numerous occasions. Timothy Sams, a gate attendant employed by Camelot, knew that Lawhorn was a police officer and that Lawhorn had a personal relationship with Bonner. Sams had allowed Lawhorn to enter the complex on many occasions, both with and without Bonner’s permission. Whenever Sams reached her by telephone, Bonner always gave permission for Lawhorn to enter the premises. On those occasions when Bonner did not answer her telephone, Sams nevertheless allowed Lawhorn into the complex because he was a police officer. Neither Sams nor Camelot ever received a complaint from Bonner that Sams should not have allowed Lawhorn to enter.

On the evening of May 26, 1990, officer Lawhorn, who was not on duty, went to Camelot to see Bonner. Sams was attending the gate when Lawhorn arrived. He telephoned Bonner’s unit to obtain her permission to allow Lawhorn’s entry, but Bonner did not answer. Sams nevertheless allowed Lawhorn to enter, as he had done on several prior occasions without incident. Lawhorn went to Bonner’s unit, kicked in the door, and beat and raped Bonner. Lawhorn was arrested and charged with rape, aggravated assault, and burglary. While in jail awaiting trial, he committed suicide.

Bonner filed this lawsuit against the Camelot Club Condominium Association, Inc. and Sams, alleging that Sams was negligent in failing to follow the condominium rules, that Sams’ negligence amounted to a breach of contract, and that the association negligently trained Sams. The trial court denied the defendants’ motion for summary judgment, finding that there are genuine issues of material fact as to the duty owed by the defendants to Bonner. The court also denied the association’s motion to compel discovery. We granted the defendants’ application for interlocutory review.

1. Appellants contend that the court erred in finding that there is a genuine issue of fact as to whether they owed a duty to Bonner. We need not address the issue of duty. We assume for purposes of this appeal that the appellants owed some duty, contractual or otherwise, to Bonner, and we further assume that they breached that duty, either by Sams’ failure to follow the condominium rules or by the association’s inadequate training of Sams. Nevertheless, the appellants would not be liable to Bonner under the particular facts of this case.

“It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers, and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence. Ordinarily, even where the proprietor’s negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. However, the above rule has been held inapplicable if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed.” (Citations and punctuation omitted.) Savannah College of Art &c. v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848) (1991). Camelot and Sams are insulated from liability because of the intervening criminal acts of Lawhorn, which they could not have reasonably foreseen.

We recognize that if a defendant undertakes to do more for the benefit of another person than the law requires, he may be liable if he negligently performs that undertaking. Lau’s Corp. v. Haskins, 261 Ga. 491 (3) (405 SE2d 474) (1991); Adler’s Package Shop v. Parker, 190 Ga. App. 68, 70-72 (1) (b) (378 SE2d 323) (1989). Such negligence, however, does not eliminate the need to determine whether an intervening criminal act was reasonably foreseeable. In addressing this issue, “[n]ot what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.” (Citations and punctuation omitted.) Adler’s Package Shop v. Parker, supra at 69 (1) (a). Based on the record, we look to the undisputed facts known by Sams at the time he allowed Lawhorn to enter the complex without Bonner’s permission on May 26, 1990. Sams knew that Lawhorn was a police officer. He knew that Lawhorn had a personal relationship with Bonner and had visited her during the entire eight months that Sams had worked at Camelot. He knew that Lawhorn had been admitted to the property on numerous occasions, both with and without permission, without incident. Sams also knew that there had never been any complaints about Lawhorn’s behavior in the complex. There is no competent evidence in the record that Bonner ever informed Sams or anyone else at Camelot of any prior abuse by Lawhorn. Moreover, there is no evidence in the record that any prior incidents similar to Law-horn’s assault of Bonner have ever occurred at Camelot.

Based on the foregoing undisputed facts, the association and Sams made a prima facie showing that they are entitled to judgment as a matter of law because Lawhorn’s criminal acts were not reasonably foreseeable. The burden of proof then shifted to Bonner to come forward with rebuttal evidence. Thomason v. Gold Kist, 200 Ga. App. 246, 247 (1) (407 SE2d 472) (1991). The record is devoid of any such evidence creating a factual issue as to whether Sams or the association could have reasonably apprehended that Bonner was at risk of a violent attack. The court therefore erred in denying the appellants’ motion for summary judgment.

2. Because of our decision in Division 1, we need not address the remaining enumerations of error.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

Decided February 26, 1993

Reconsideration denied March 8, 1993

Duncan & Mangiafico, Edgar S. Mangiafico, Jr., Leslie P. Becknell, for appellants.

Pearl & Associates, Alfonza Pearl, Douglas E. Pack, for appellee.

       We note that Bonner’s roommate made a hearsay statement at her deposition that Bonner told her that on one occasion she called the Camelot gate and told the guard not to let Lawhorn into the complex. Bonner herself gave no such testimony and the parties have not addressed the roommate’s statement in their briefs. Therefore, we presume that there is no dispute that the statement is irrelevant to our consideration of this appeal. On a motion for summary judgment, inadmissible hearsay statements may not be used to create a genuine issue of material fact. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a) (397 SE2d 576) (1990). Even if this hearsay statement were admissible, it does not create an issue of fact as to the foreseeability of Lawhorn’s criminal acts; the roommate does not know who Bonner supposedly spoke to and the roommate does not claim that Bonner told the guard that Lawhorn was not to be admitted because he had previously abused her. In fact, Bonner herself testified at her deposition that she never discussed prior incidents of abuse by Law-horn with anyone except her roommate.

       A former supervisor of property patrol at Camelot testified at his deposition that he had never heard of any rapes occurring at Camelot, though he was informed of one burglary. The prior burglary is irrelevant to our analysis because it is not substantially similar to the violent assault which is the basis of this litigation. See Savannah College of Art, supra at 765; Shell Oil Co. v. Diehl, 205 Ga. App. 367 (1) (422 SE2d 63) (1992).


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A92A2310.
    RANDALL v. THE STATE.
    (428 SE2d 616)
   Blackburn, Judge.

The appellant, Darryl Dwayne Randall, was convicted of child molestation and aggravated child molestation, for which he was sentenced to 15 years imprisonment on each count. On appeal, he contends that evidence of a similar transaction was improperly admitted, and that his trial counsel provided ineffective assistance. We affirm.

1. For approximately seven years prior to his arrest, the appellant lived with his girl friend and her eleven-year-old daughter. When the daughter was around five years old, she had told her grandmother that the appellant had “messed” with her, but the family had not believed her. In May 1990, the daughter again complained about sexual abuse by the appellant, but an investigation by the Glynn County Police Department was dropped when the daughter refused to talk about the matter further. At trial, two family friends and the sister of the appellant’s girl friend testified that on June 3, 1991, the daughter recounted to them multiple episodes of sexual abuse by the appellant, including acts of sexual intercourse and sodomy.

Their conversations with the daughter on that day had been precipitated by their suspicion that the appellant had molested the three-year-old daughter of one of the two family friends when the child had spent the weekend at the appellant’s mobile home. During a pretrial hearing, the state explained that it actually did not seek admission of evidence of a similar transaction; rather, it wanted to adduce the testimony to explain why these individuals had approached the victim in the first place, and because the evidence was relevant to show a possible motivating factor behind the victim’s decision to reveal the sexual abuse. The trial court allowed the testimony, but instructed that any reference to the possible molestation of the three-year-old child must not implicate the appellant.

Pursuant to that limitation imposed by the trial court, the two family friends and the aunt of the victim testified that the three-year-old child had spent the weekend at the appellant’s residence; that the child had blood spots on her panties when her mother picked her up; that the mother took the child to the hospital; that they approached the victim to ask her if she knew what happened to the three-year-old child; and that they then asked the victim if the appellant had “messed” with her. An investigator with the Glynn County Police Department also testified that she had occasion to investigate the possible sexual abuse of the victim as a consequence of another investigation concerning the three-year-old child. None of the witnesses actually stated that the three-year-old child had been molested, and none indicated that the appellant was suspected of molesting that other child.

Evidence of independent offenses committed by a defendant generally is inadmissible, as it impermissibly places the defendant’s character in issue. However, such evidence may be admitted for the limited purpose of showing bent of mind, identity, intent, motive, scheme, or course of conduct, if the defendant is identified as the perpetrator of the independent offense, and there is sufficient similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). It should also be emphasized that before such evidence is admissible, it must be shown that the evidence’s relevancy to the issues at trial outweighs the inherent prejudice it creates. Robinson v. State, 192 Ga. App. 32 (383 SE2d 593) (1989).

In the instant case, the testimony of the state’s witnesses regarding this matter that caused them to approach the victim was heard during the pretrial hearing, so that the parameters of the allowable testimony could be determined. During the hearing, although the trial court, assistant district attorney, and defense counsel referred to the evidence in question as a similar transaction, the state emphasized that it sought admission of the testimony only for the purpose of explaining why the witnesses approached the victim and showing the circumstances surrounding the victim’s revelation of the sexual abuse. See Taylor v. State, 176 Ga. App. 567, 573 (4) (336 SE2d 832) (1985). The state followed the limitation set by the trial court, and the trial testimony actually neither alleged that the three-year-old child had been molested nor indicated that the appellant was a suspect in another transaction. In short, the testimony did not establish a similar transaction. See Hawkins v. State, 202 Ga. App. 163 (413 SE2d 525) (1991).

The appellant also complains that evidence of independent offenses was impermissibly brought out during defense counsel’s cross-examination of a prosecution witness. This witness testified about an incident when he interrupted an episode of sexual activity between the appellant and the victim at the appellant’s mobile home. Upon cross-examination by defense counsel about whether he had reported the incident to anyone else, the witness stated that he had recounted it to another individual, who had told him that the appellant “had been in trouble before about that. . . .” At that point, the assistant district attorney and the trial court, and not the defense counsel, instructed the witness not to broach that subject. This “testimony came in response to a question put to him by defense counsel, who voiced no objection to the response of the witness. The enumerated error suffers two characteristics fatal to appellate review: error, if any, was induced by appellant; and appellant waived any error by failing to object. [Cit.]” Montes v. State, 262 Ga. 473, 475 (2) (421 SE2d 710) (1992).

The defense presented several witnesses who testified as to the appellant’s good reputation and veracity. Upon cross-examination, the state asked some of these character witnesses whether they were aware of allegations that the appellant had molested another child, and referred to their responses during closing argument. The appellant now contends that this questioning and closing argument also impermissibly placed his character in issue by referring to the other transaction. However, the appellant failed to raise any objection to this line of questioning or closing argument, and objections not raised at trial are deemed waived. Cole v. State, 200 Ga. App. 318, 321 (5) (408 SE2d 438) (1991); Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989).

2. In a related enumeration of error, the appellant relies upon Moore v. State, 202 Ga. App. 476, 480 (3) (414 SE2d 705) (1992), in contending that the trial court erred in failing to instruct the jury on the limited purpose for which the testimony regarding the three-year-old child was admitted, notwithstanding the absence of a proper request for such a charge. Generally, when evidence is admitted for one purpose, it is not error for the trial court to fail to instruct the jury to limit its consideration of the evidence to that one purpose, in the absence of a written request for such a jury instruction. Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978). In Moore v. State, supra, this court declined to apply that general rule where the state did not give notice of its intent to introduce evidence of similar transactions until the morning of the trial, thus depriving the defendant of any opportunity to prepare a proper request for a jury instruction regarding such; where evidence of the defendant’s convictions for similar offenses actually was admitted; and where the trial court’s jury charge had the effect of instructing the jury to consider the evidence for an impermissible purpose. However, none of those exceptional factors is present in the instant case, and the trial court’s failure to instruct the jury to limit its consideration of the testimony regarding the three-year-old child, in the absence of a request for such, was not error.

3. The appellant contends that at trial he was denied effective assistance of counsel because of his trial counsel’s lack of preparation, and his inadequate cross-examination of the physician who testified about the findings of his physical examination of the victim after she reported the sexual abuse by the appellant. In order to prevail on his claim of ineffective assistance of counsel, the appellant must show that his trial counsel’s performance was deficient, and that his defense was prejudiced by the deficient performance so that he was deprived of a fair trial. Williams v. State, 202 Ga. App. 494, 495 (1) (414 SE2d 716) (1992).

With regard to the extent of the trial counsel’s preparation, the appellant points out that his trial counsel had only approximately two weeks to investigate the matter, locate witnesses, and prepare for trial. However, mere shortness of time for preparation of counsel is insufficient to show ineffectiveness. Brown v. State, 180 Ga. App. 361 (1) (349 SE2d 250) (1986). In the instant case, the trial counsel recalled meeting with the appellant prior to the trial for two to four hours, and he interviewed a list of the witnesses named by the appellant. It was unnecessary for the counsel to employ an investigator, because the appellant’s girl friend assisted him in locating the witnesses and arranging the interviews. The trial counsel also interviewed the physician who testified at the trial and reviewed his medical records regarding his examination of the victim. He successfully moved for a continuance of the date for hearing motions, and represented the appellant during three motions hearings, including a Jackson-Denno hearing. He researched legal issues involved in the case, particularly the Child Hearsay Statute. He engaged in plea bargain negotiations whereby the state offered to agree to a sentence of seven years probation, which was rejected by the appellant. At trial, he conducted voir dire, made various objections to the testimony of and cross-examined the state witnesses, and presented several witnesses on behalf of the defendant. He moved for a directed verdict, and made a closing argument. Although he filed no written requests for jury charges, he did participate in the jury charge conference and verbally requested certain charges.

At trial, a physician testified that he examined the victim on June 3, 1991. Externally, the child appeared normal, with no signs of trauma. There was some opening of the hymenal ring, which could be normal for an 11-year-old child. However, the physician noted that some degree of penetration could occur without totally perforating the hymen, and his physical findings were consistent with sexual abuse. He also recounted that the child gave a history of multiple episodes of sexual abuse. During the hearing on the motion for new trial, the appellant’s new counsel contended that the trial counsel was deficient in his cross-examination of the physician, because he failed to ask whether the limited physical findings were consistent with the extensive sexual abuse reported by the child during the examination.

Decided February 25, 1993

Reconsideration denied March 8, 1993.

Ernest B. Gilbert, Susan E. Perry, for appellant.

Glenn Thomas, Jr., District Attorney, Kevin R. Gough, Assistant District Attorney, for appellee.

At the hearing, the trial counsel agreed that such a question would have been pertinent, and he thought that he had made that inquiry. The transcript reveals that he did not actually raise that question, but he did engage in a thorough cross-examination of the physician regarding the extent of his physical findings. “It is rank speculation to suggest that it is reasonably probable that a more thorough and sifting cross-examination of the [physician] would have resulted in appellant’s acquittal.” Garrett v. State, 196 Ga. App. 872, 873 (397 SE2d 205) (1990). Further, the trial counsel explained that the physician was not a very cooperative witness, and he had completed his cross-examination after obtaining as much favorable testimony as he thought he could. Such a trial judgment or tactic does not equate with ineffective assistance of counsel. Williams v. State, supra; Weldon v. State, 202 Ga. App. 150 (413 SE2d 466) (1991).

In summary, the trial counsel’s performance in the instant case was within the range of “ ‘reasonably effective assistance.’ ” Weldon v. State, supra. The trial court’s finding that the appellant was afforded effective assistance of counsel thus was not clearly erroneous, and must be upheld. Williams v. State, supra at 495.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A1966.
    GAZAWAY v. THE STATE.
    (428 SE2d 659)
   Birdsong, Presiding Judge.

Samuel Lamont Gazaway was convicted of driving under the influence of alcohol, driving with an unlawful blood alcohol concentration, and driving with a suspended license. His blood alcohol content was .18 grams percent, as measured about an hour after arrest. The State’s evidence showed that at about 3:30 a.m. on April 3, 1991, an officer was on patrol when he saw a van parked outside a trailer; the van’s lights were on but he saw no one in or around the van. The officer parked about 500 feet away and watched for about five minutes; then he turned on his alley light, drove his police car into the driveway and parked at an angle about 20-30 feet behind the van. He noticed the van was running and could hear the sound of its exhaust. The officer got out of his car and approached the van, which was parked on a slight incline. When he was about 15-20 feet from it, the van began to roll back. The officer hailed the van to stop but it hit the police car, doing moderate damage. Then the officer saw appellant “pop up” in the driver’s seat. The officer opened the van door, appellant turned off his ignition, and the officer helped him out of the vehicle. On request for a driver’s license, appellant stated he had none. As he exited the van, appellant was extremely groggy and strongly smelled of beer; he was disoriented and bleary-eyed and appeared “intoxicated beyond the purpose of giving a field test.” The officer placed appellant in the police car. Appellant said that he had not been driving but was in the van because the couple with whom he was staying were “making love” in the trailer. But no lights came on in the trailer and no one came out despite the officer’s yelling and the collision, and even though the officer turned on his blue lights.

Appellant testified he had worked painting apartments until 2:30 a.m. and that Gary Stevens, who lived in the trailer, picked appellant up from work. Appellant stayed in the van because Gary and his wife had some problems and were “making up”; also, he had “a few things [he] could do to the van. And also put some dash lights and things and some fuses in it that it needed anyway.” He was repairing these items when the police car drove up behind the van; he had the parking lights on because he was working on the van; the parking brake did not work and the van jumped out of gear and ran into the police car. He did not see the police car or its alley light, but jumped up to hit the brake and put the gear in “park” when the van began to roll back. Appellant admitted he was drunk and “pretty near wasted”; he said Gary Stevens came out of the trailer when the ruckus occurred and that the police car never had its alley light or blue lights on. Appellant was stopped again in June of 1991 for DUI.

Appellant contends there is no evidence he drove on a public highway as required by OCGA § 40-5-121 or was in actual control of a moving vehicle while under the influence as proscribed by OCGA § 40-6-391 (a) (1); that the convictions are based entirely on circumstantial evidence which does not exclude every other reasonable hypothesis than guilt; and that his arrest was illegal. Held,-.

1. On appeal from a finding of guilt, the presumption of innocence no longer prevails and evidence must be viewed in the light most favorable to the verdict, for it reflects the jury’s determination on the credibility and weight of evidence which determination we must accept; we consider only the sufficiency of the evidence to support. a conviction. Dunlap v. State, 202 Ga. App. 493, 495 (414 SE2d 728). We have reviewed the evidence in favor of the jury’s verdict and find it sufficient to enable a rational trier of fact to find appellant committed the offenses charged, including the element of driving on a public highway as stated in OCGA § 40-5-121, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided March 8, 1993.

David E. Clark, for appellant.

Gerald N. Blaney, Jr., Solicitor, Deborah M. Perlis, Assistant Solicitor, for appellee.

As to the contention that there is no evidence appellant drove on a public highway because no one saw him drive on a public highway, it is the nature of the legal inquiry that where there is no eyewitness to the offense, the jury determines what a defendant did in the pertinent past according to present evidence, including circumstantial evidence; it is the nature of crime that it is usually done surreptitiously and the conclusion that a defendant did the deed must often, of necessity, be taken from evidence other than his being caught in the act. This is the very nature of circumstantial evidence. As for whether any other reasonable hypotheses existed than that appellant had driven drunk on a public highway, the defendant’s explanation is taken into consideration insofar as it is consistent with the circumstantial evidence (Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474)); we have no yardstick for what is consistent or reasonable save the opinion of the jurors, who are in the best position to determine credibility of witnesses and questions of reasonableness. Glover v. State, 237 Ga. 859, 860 (230 SE2d 293); Harris v. State, 236 Ga. 242, 244 (223 SE2d 643); Mercier v. Mercier, 46 Ga. 643; Williams v. State, 153 Ga. App. 890, 894 (267 SE2d 305); Townsend, supra.

2. As the officer had probable cause to suspect appellant had been driving while intoxicated, the arrest was not illegal.

Judgment affirmed. Beasley and Andrews, JJ., concur.


text:
    A92A2055.
    EFFEL v. EFFEL.
    (428 SE2d 809)
   Birdsong, Presiding Judge.

This is an appeal from the order denying appellant/defendant’s motion for new trial. Appellee/plaintiff initiated suit for breach of contract; a bench trial was commenced but thereafter the trial court called up a jury to determine the value of certain precious metal scrap. For reasons not disclosed in the record, a transcript of the proceedings could not be obtained. Rather the record contains an attempted reconstruction of the transcript by the parties. After appellant’s counsel and one of appellee’s co-counsel prepared the reconstruction and stipulated thereto, another of appellee’s counsel took issue with the accuracy of the reconstruction. Both a withdrawal of stipulation to reconstruction of the transcript and an objection to reconstructed transcript were filed by appellee. Appellant’s counsel filed the alleged reconstructed transcript. Review of the transcript of the hearing on the motion for new trial reveals that substantial differences exist between the parties as to the content of the reconstructed trial transcript, particularly as to the nature of the foundation laid for the opinion of appellee as to the value of the precious metal scrap, and as to the scope of her testimony concerning such matters. Likewise the attempted reconstruction of the transcript fails to establish clearly exactly what particular answer of appellee was objected to on the grounds of being speculative, or whether any other objections were made and the specific grounds asserted in support thereof. Neither does the record clearly reveal whether appellant ever entered a timely request to have the trial reported.

At the hearing on the motion for new trial, the trial court never ruled on the accuracy of the reconstructed transcript, whether one co-counsel had the authority to enter a binding stipulation as to the contents of the reconstructed transcript without the other counsel’s participation and consent, whether the objections of appellee to the accuracy of the transcript were valid in whole or in part, or whether (assuming one co-counsel could bind another as to a stipulated reconstructed transcript) appellee’s counsel were authorized to withdraw such stipulation. The hearing transcript does reveal that the trial court remembered at least some events which were not reflected in the reconstructed transcript, and that the trial court remembered generally what occurred at trial and would do the best it could to recall specifically what had transpired. The trial court’s order is unclear whether it considered the reconstructed transcript accurate; the order does imply, however, that the court was not satisfied with the accuracy of the reconstruction, as it referred to the document merely as a purported stipulated transcript. The order also implies that the trial court considered certain evidence, which was properly before it, but which was not included within the attempted transcript reconstruction. Held:

1. This court cannot consider factual allegations in briefs not supported by the record. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223).

2. As a general rule, it is the duty of appellant to have the transcript or an adequate substitute thereof prepared pursuant to OCGA § 5-6-41. Wright v. Southern &c. Properties, 204 Ga. App. 538 (419 SE2d 764). Without access either to an official transcript or an adequately reconstructed transcript, this court cannot effect a proper disposition of the issues raised on appeal, and under such circumstances would be required to affirm the ruling of the trial court. Compare Peterson v. State, 204 Ga. App. 532, 534 (3) (419 SE2d 757); Nodvin v. West, 197 Ga. App. 92, 97 (3c) (397 SE2d 581). In this case, we note that the accuracy of the reconstructed transcript has not been conceded by appellee. Incidentally, we cannot ascertain from the state of the reconstructed transcript and the record whether appellee K. Leland Effel testified as an expert witness or whether she gave a lay opinion as to the value of the scrap (perhaps based on certain factors not currently appearing in the reconstructed record). In any event, faced with the disagreement of the parties as to the content of the transcript, “the trial court should have entered an order stating what transpired at trial, or, if it was unable to recall what transpired, it should have entered an order stating that fact.” Johnson v. Hubert, 175 Ga. App. 169, 170 (2) (333 SE2d 21).

Decided March 8, 1993.

R. L. Littlefield, Jr., for appellant.

Bates & Baum, Stanley M. Baum, Charles W. Wrinkle, for appellee.

Accordingly, we will remove this case from the appeal docket and remand it to the trial court with direction to make those findings required by Johnson, supra. The parties shall have the right to file another appeal within 30 days of the entry of the mandated order by the trial court (Ga. Const. of 1983, Art. VI, Sec. I, Par. IV; see In re T. E. D., 166 Ga. App. 322, 323 (303 SE2d 777)). In the event such an appeal is timely filed this court shall make a threshold determination, after examining the order of the trial court, whether the contents of the reconstructed transcript are adequate for appellate purposes within the meaning of Peterson, supra, and Nodvin, supra.

Case remanded with direction. Beasley and Andrews, JJ., concur.


text:
    A92A2113.
    STEPHENS v. THE STATE.
    (428 SE2d 661)
   Birdsong, Presiding Judge.

Freddie L. Stephens appeals his judgment of conviction of violating the Georgia Controlled Substances Act (possession of cocaine) and obstruction of an officer, and his sentence. He enumerates two errors. Held:

1. Appellant asserts the trial court erred by restricting his cross-examination of the State’s crime lab witness when it refused to allow appellant to examine the witness regarding another crime lab scientist who testified at a hearing in another county in an unrelated case that a substance was cocaine when in fact it was soap. Appellant made a proffer of expected testimony outside the presence of the jury and argued that the incident “goes to the integrity ... of the State Crime Lab,” and that it was thus “fair game.” The crime lab witness testified, during proffer, that he had “no personal knowledge” of the incident and all the information he possessed about it was “secondary information” which was told to him at a crime lab meeting conducted by his supervisor.

Appellant has a statutory right to a thorough and sifting cross-examination of the witnesses against him (OCGA § 24-9-64); however, this right is not without legitimate limitations (Hayes v. State, 193 Ga. App. 33, 34 (2) (387 SE2d 139)). The right of cross-examination is not abridged where examination is limited by the trial judge to relevant matters by proper questioning. Timberlake v. State, 200 Ga. App. 64, 66 (2) (406 SE2d 537); Jennette v. State, 197 Ga. App. 580 (2) (398 SE2d 734). Controlling the scope or extent of cross-examination is a matter resting within the sound discretion of the trial court (Robinson v. State, 258 Ga. 279, 281 (3) (368 SE2d 513)) and, in the absence of an abuse of discretion in controlling the scope or extent thereof, an appellate court will not interfere (Walker v. State, 198 Ga. App. 422, 423 (1) (401 SE2d 613)). The record does not establish that the trial court abused its discretion in this matter.

2. Appellant asserts the trial court erred by requiring him to waive his Fourth Amendment right as a condition of parole. The trial court sentenced appellant to thirty years as to the cocaine possession charge and five years (to run concurrently) as to the felony obstruction charge; appellant was not sentenced to probation. Over an objection that defendant could not, under these circumstances, be sentenced to forfeit Fourth Amendment rights, the trial court sentenced appellant, as a condition of any parole, to waive his Fourth Amendment rights to search and seizure. The trial court explained the effect of this condition as subjecting appellant to “be searched at any place [he] may be or have control of, possession or control . . . without a warrant and without probable cause.” (Emphasis supplied.) (Thus, under these broad and unrestricted terms, law enforcement authorities could claim an unfettered right to search appellant’s bedroom in the middle of the night for absolutely no reason at all, as a result of the parole condition imposed ostensibly as a legitimate part of appellant’s sentence.)

Our search of statutory and case law reveals no express legal authority for the imposition of this type of parole condition by the trial judge as a part of an offender’s sentence. Conversely, Art. I, Sec. II, Par. Ill of the Georgia Constitution of 1983 mandates that the legislative, judicial, and executive powers of the state shall forever remain separate and distinct; “and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.” Additionally, Art. IV, Sec. II, Par. I of the Georgia Constitution establishes a State Board of Pardons and Paroles; and Art. IV, Sec. II, Par. II (a) thereof vests the board with the “power of executive clemency” including the power to grant reprieves, pardons, and paroles. In OCGA § 42-9-1, the General Assembly promulgated and declared its legislative policy regarding the executive character of the functions of the State Board of Pardons and Paroles, as follows: “In recognition of the doctrine contained in the Constitution of this state requiring the three branches of government to be separate, it is declared to be the policy of the General Assembly that the duties, powers, and functions of the State Board of Pardons and Paroles are executive in character and that, in the performance of its duties under this chapter, no other body is authorized to usurp or substitute its functions for the functions imposed by this chapter upon the board.” (Emphasis supplied.)

In this regard, OCGA § 42-9-20 provides that among the board’s general duties is included, inter alia, “the duty of determining which inmates serving sentences imposed by a court of this state may be released on pardon or parole and fixing the time and conditions thereof.” (Emphasis supplied.) This statutory provision is implemented further by OCGA § 42-9-44 which provides, inter alia, for certain procedures to be followed in placing a person on parole, requires the board to adopt general rules concerning the terms and conditions of parole, and contains an illustrative listing of various parolee requirements which may be imposed by the board as a condition of parole. It thus appears that both the Constitution and the legislature have cloaked the State Board of Pardons and Paroles in a mantle of executive power regarding the terms and conditions of paroles. However, “[i]t must be conceded that separation of powers is not a rigid principle”; and “ ‘it is impossible to draw a mathematical line by which every action can be exactly classified . . . [as] there are some matters which do not inherently and essentially appertain to one department of government rather than to another.’ ” Greer v. State of Ga., 233 Ga. 667, 668-669 (212 SE2d 836).

Nevertheless, giving due deference to the promulgated statutory policy of the General Assembly to preclude the usurpation of the executive functions of the board, and acting in an abundance of caution so as to follow the perceived judicial policy of our Supreme Court, we conclude that “[a]ny attempt by a court to impose its will over the Executive Department [by attempting to impose as a part of a criminal sentence conditions operating as a prerequisite of or becoming automatically effective in the event of a subsequent parole of defendant by the State Board of Pardons and Parole] would be a nullity and constitute an exercise of power granted exclusively to the Executive.” Johns v. State, 160 Ga. App. 535, 536 (287 SE2d 617); compare Davis v. State, 181 Ga. App. 498 (353 SE2d 7); Morrison v. State, 126 Ga. App. 1, 4 (4) (189 SE2d 864) (condition attached to sentence of one year without parole was beyond the authority of the jury; whether defendant would be paroled rested within the authority of the State Pardon and Parole Board).

Decided March 8, 1993.

Summer & Summer, Daniel A. Summer, for appellant.

C. Andrew Fuller, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

Appellee has supported its argument with various case citations where a trial court during sentencing imposed conditions as to probation. These cases are not persuasive. The issue before us concerns the imposition during sentencing of conditions as to the future parole of a criminal defendant.

Judgment of conviction affirmed; sentence vacated and remanded for resentencing. Beasley and Andrews, JJ., concur.


text:
    A92A2186.
    GRAY v. THE STATE.
    (428 SE2d 663)
   Birdsong, Presiding Judge.

Curtis O’Neal Gray appeals his convictions for burglary and aggravated assault with intent to rape. Gray contends the trial court erred by denying his motion for a directed verdict of acquittal and by denying his motion to suppress evidence resulting from his alleged illegal arrest. Held:

1. Gray’s contention that the trial court erred by denying his motion for a directed verdict of acquittal is without merit. Granting such a motion is authorized only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311). On appeal a court reviewing the denial of a motion for a directed verdict of acquittal may consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)), and must view the evidence in the light most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436). In this appeal, the transcript shows the following evidence supporting the verdict: the victim identified Gray as the man who attacked her in her apartment, Gray was apprehended while fleeing the victim’s apartment complex at a high rate of speed, he had clothing as described by the victim, including gloves showing the presence of saliva that was consistent with the victim’s statement she bit her attacker while he had on gloves, Gray’s shoes and socks were wet and had grass clippings from the area outside the victim’s apartment, and the soil on his shoes matched the soil outside the victim’s apartment. Accordingly, there was ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Gray was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Therefore, the trial court did not err by denying Gray’s motion.

2. Gray also contends the trial court erred by denying his motion to suppress evidence resulting from what he terms an arrest without probable cause. He asserts that he was arrested when the police officer handcuffed him and placed him in the rear of the police car when the information the officer possessed was insufficient to give probable cause for arrest. He contends the description of the attacker provided to the officer on the scene did not match Gray’s actual appearance, and also contends the officer’s testimony that he did not arrest Gray when he handcuffed and placed Gray in the car is an admission the officer did not have probable cause. Following presentation of evidence on the motion and hearing argument, the trial court denied the motion without explaining its reasons.

Under the evidence in this case, we need not resolve whether Gray was arrested or merely detained under an extended Terry investigative stop (see Williams v. State, 251 Ga. 749, 792 (312 SE2d 40)) because the officer had probable cause for Gray’s arrest at that time. Therefore, whether the officer was correct in his belief that he had not taken Gray in custody is of no legal significance. See Morgan v. State, 195 Ga. App. 732, 734-735 (394 SE2d 639).

At the crucial time when Gray was handcuffed and placed in the police car (see Hall v. State, 200 Ga. App. 585, 586 (409 SE2d 221)), the officer knew the following: At approximately 3:00 a.m. while responding to a burglary in progress call at an apartment complex, he saw an automobile depart the apartments at a high rate of speed without stopping. When he stopped the car, Gray, the sole occupant of the car, appeared extremely nervous and immediately approached the police car until he was directed to return to his car and place his hands on the car. Even though the night was cool enough that the officer could see his own breath and Gray was wearing only a white tank top, dark blue shorts, tube socks, and black athletic shoes, sweat was rolling down Gray’s head, arms, and body and he was breathing heavily as if he had just finished a foot race. Also, when asked to explain his activities, Gray’s answers had him in the process of returning to his home in Palmetto (some 15 miles from his location) from either Griffin, Columbus, or Thomaston even though the direct route from any of those locations would not lead him to the road where he was stopped. Additionally, because of the radio call from the other officer, the arresting officer had a description of the perpetrator that stated the person was a black male, approximately five foot eight inches or five foot nine inches and weighing 170-180 pounds who, at the time of the attack, was wearing dark clothing with long sleeves and perhaps gloves. Further, noticing Gray’s shoes and socks were soaking wet and covered with grass clippings, the officer asked the other officer if it was wet and there was freshly cut grass near the scene of the crime, and was told that both conditions existed. During this time, Gray was supposed to be standing with his hands on his car, but he kept taking his hands off the car, standing up and leaning down, and looking around very quickly. Further, the more the police officers talked on the radio, the more nervous Gray appeared. At this point, the officer became concerned that Gray might attack him or attempt to run away; he decided to place him in handcuffs in the police car until the situation was sorted out.

In reviewing a trial court’s decision on a motion to suppress, our responsibility is to ensure that there was a substantial basis for the decision. Brown v. State, 190 Ga. App. 324, 326 (378 SE2d 908). In so doing, we may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial (Newsome v. State, 192 Ga. App. 846, 847 (386 SE2d 887)); we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Ragin v. State, 192 Ga. App. 686, 687 (385 SE2d 770); Watson v. State, 190 Ga. App. 696 (379 SE2d 817). Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them. Ward v. State, 193 Ga. App. 137, 138 (387 SE2d 150).

Although the description provided did not exactly match Gray’s appearance, it need not do so for the officer to consider the information. Cobb v. State, 244 Ga. 344 (260 SE2d 60); Creecy v. State, 235 Ga. 542-543 (221 SE2d 17). Additionally, the officer was allowed to consider the information received over the police radio. Parker v. State, 161 Ga. App. 37, 39 (288 SE2d 852).

When the information received by radio is added to the officer’s own observations of Gray’s appearance and Gray’s actions, it is apparent that abundant facts and circumstances existed to cause a reasonably prudent man to conclude that Gray had committed the offense of burglary. Sanders v. State, 235 Ga. 425, 440 (219 SE2d 768); Davis v. State, 203 Ga. App. 227, 228 (416 SE2d 771).

As the officer had probable cause to arrest Gray, any arrest was valid under both the United States and Georgia Constitutions. Newsome v. State, supra at 849; Burroughs v. State, 190 Ga. App. 467 (379 SE2d 175). Consequently, the trial court did not err by denying the motion to suppress.

Decided March 8, 1993

George M. Johnson, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Patsy Y. Porter, Assistant District Attorneys, for appellee.

Judgment affirmed. Beasley and Andrews, JJ., concur.


text:
    A92A2265.
    CARROLL v. AMERICAL CORPORATION.
    (428 SE2d 811)
   Birdsong, Presiding Judge.

Margie A. Carroll appeals from the grant of summary judgment to Americal Corporation and from the dismissal of Joseph Husband Froeber because of void service of process. The record shows Carroll was in an automobile accident with Froeber who was driving an automobile owned by Americal and was going from home to work. Because Froeber’s driver’s license showed that he lived in North Carolina, Carroll attempted service upon him through the Secretary of State under the Nonresident Motorists Act (OCGA § 40-12-1 et seq.). Subsequently, Froeber successfully challenged service upon him under the Nonresident Motorists Act because at the time of the accident he was a resident of Georgia even though he continued to use the North Carolina driver’s license. Thereafter, the trial court granted Americal’s motion for summary judgment because Carroll had not established that at the time of the accident Froeber was acting within the scope of his employment.

Carroll contends that both of these rulings were erroneous. Held:

1. Although Carroll enumerated as error the trial court’s ruling that service upon Froeber was defective, this enumeration is supported only by argument that it was unfair for the trial court to hold that Froeber could not be served under the Nonresident Motorists Act when he used a North Carolina driver’s license. Carroll, however, has made no argument that the trial court was incorrect legally, and has made no reference to the transcript or citation of authority; therefore, this enumeration could be deemed abandoned. See Court of Appeals Rule 15 (c); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564); Sepulvado v. Daniels Lincoln Mercury, 170 Ga. App. 109 (316 SE2d 554). Nevertheless, since some argument was made we will address this issue. Although Carroll blames Froeber’s use of the North Carolina license for her failure to perfect service, we note that the certificate from our Secretary of State’s office identifying the registered agent for Americal designated Joseph Husband Froeber in Carrollton, Georgia, as the agent for service and that Carroll directed process for Americal to be served upon Joseph Husband Froeber in Carrollton, Georgia. Moreover, the return receipt for the certified mail delivery in North Carolina showed delivery to a “Mrs. R. J. Froeber.” Under the circumstances, it is difficult to place the entire blame on Froeber for failure of service. In any event, it was Carroll’s responsibility to investigate and determine where a defendant may be served. Jarmon v. Murphy, 164 Ga. App. 763, 764 (298 SE2d 510).

Moreover, even if Froeber continued to maintain a residence in North Carolina in addition to his residence in Georgia, that would not authorize use of the Nonresident Motorists Act. A person may reside in one place and be domiciled in another (Avery v. Bower, 170 Ga. 202, 206 (152 SE 239)), and may have more than one residence (Davis v. Holt, 105 Ga. App. 125 (123 SE2d 686)), but as long as one residence is in Georgia, he is not a nonresident for purposes of the Act. Thompson v. Abbott, 226 Ga. 353, 357 (174 SE2d 904); Bailey v. Hall, 199 Ga. App. 602 (405 SE2d 579). Accordingly, the trial court did not err by finding that the Nonresident Motorists Act did not apply to this case and by finding that Carroll was guilty of laches by not perfecting valid service in a diligent manner after service of process was contested in the defendant’s answer to the complaint. See Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138). Additionally, we note Carroll has not challenged the trial court’s ruling on her lack of diligence.

2. Carroll further contends the trial court erred by granting summary judgment to Americal because a genuine issue of material fact remained on whether Froeber was acting in the scope of his employment at the time of the accident. As Carroll relies on the presumption that Froeber was acting in the scope of employment created because he was driving his employer’s car at the time of the accident, this appeal falls within the analysis employed by our Supreme Court in Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186). Under Allen Kane, when faced with facts rebutting the presumption of scope of employment, a plaintiff cannot merely rely upon the presumption of scope of employment to create a jury issue. Id. at 779-780.

Here, the record shows Americal and Froeber submitted evidence that Froeber was not acting in the scope of his employment at the time of the accident. Carroll’s response only relied upon the presumption that Froeber was within the scope of his employment because the car was owned by Americal, and Froeber, Americal’s employee, was driving at the time of the accident. She did not present evidence or point to other evidence in the record showing some other fact indicating that Froeber was acting within the scope of his employment with Americal. Under Allen Kane, Carroll’s response was insufficient to create a jury issue because Carroll did not present any facts showing that Froeber was acting within the scope of his employment other than Americal’s ownership of the car and Froeber’s status as Americal’s employee. Id. at 780. Under the circumstances, Americal demonstrated that there was no evidence in the record sufficient to create a jury issue on this essential element of Carroll’s case and Carroll failed to come forward with or “point to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Therefore the trial court did not err by granting summary judgment to Americal.

Decided March 8, 1993.

Johnson, Beckham & Dangle, William P. Johnson, for appellant.

Fortson & White, Williston C. White, Matthew G. Moffett, Kenneth B. Hodges III, for appellee.

Judgment affirmed. Beasley and Andrews, JJ., concur.


text:
    A92A2353.
    GARCIA v. THE STATE.
    (428 SE2d 666)
   Birdsong, Presiding Judge.

Manuel Garcia appeals his judgment of conviction of trafficking in cocaine by knowingly possessing more than 400 grams of a mixture with a purity of more than 10 percent cocaine, and his sentence. He enumerates two errors. Held:

1. It is asserted the trial court erred in denying appellant’s suppression motion because the search of his vehicle was an unreasonable search in violation of the Fourth Amendment, and appellant never consented either to the original or to a second search. In support of this enumeration, appellant argues that the scope of the police search exceeded the scope of appellant’s consent.

(a) Consent searches are valid but where the State relies upon consent, it has the burden to demonstrate from all the circumstances that the consent was voluntary and not the result of duress or coercion, express or implied. If it appears that a valid consent was given to search, such consent eliminates the need for either probable cause or a search warrant. In determining whether a search and seizure was reasonable, an appellate court can consider all relevant evidence of record, wherever located, including that adduced at a suppression hearing before trial and that adduced during trial. Newsome v. State, 192 Ga. App. 846 (1) (386 SE2d 887). Moreover, the trial court’s decision, express and implied, as to credibility and disputed questions of fact at a suppression hearing must be accepted on appeal unless clearly erroneous. See generally State v. Davis, 261 Ga. 225, 226 (404 SE2d 100); Santone v. State, 187 Ga. App. 789, 790 (1) (371 SE2d 428). However, when the operative facts are undisputed and the trial court merely applies a conclusion of law to these undisputed facts to determine search legality, an appellate court owes no particular deference to such legal conclusion. See generally State v. McBride, 261 Ga. 60, 65-66 (401 SE2d 484) (Hunt, J., concurring specially); Davis, supra at 226, n. 1.

(b) In this case, a police officer observed a female on the road who appeared to be upset and was impeding the flow of traffic by attempting to flag down passing cars. The woman told the officer that her boyfriend, appellant Manuel Garcia, had ingested narcotics and was behind the nearby church. Backup was called. The female further stated that appellant had threatened to kill her because she was going to tell that he had a lot of cocaine in his car, although he did not have any weapons. The officers were also told that appellant “had been selling what [the woman] believed to be cocaine on their trip from Florida up to Georgia.” Two officers went to the church parking lot and found appellant in his car. Appellant denied that he had drugs or weapons in his car, or that he had threatened to kill the woman.

One of the officers then asked appellant “do you mind if [the two officers] search your vehicle,” and appellant replied, “no, I don’t.” The officer again stated to appellant, “you do not mind if we search your vehicle,” and appellant responded, “no, go ahead.” Appellant did not appear to have any problem understanding and responding to these questions, and did not appear to be under the influence of alcohol or drugs. Appellant was then asked to move away from the car and the two officers proceeded to search the vehicle, but no drugs were found. One of the officers continued to search the car and never stopped searching, while the other went back to the patrol car and was immediately asked by the woman if he found “it.” The officer who went back to the patrol car then asked the woman where the cocaine was located and she said “behind the radio panel.” She further said “the panel will fall off”; “the panel pulls off and it’s behind the radio panel in a white plastic bag.” The officer returned to the car and informed the other officer who was still searching the vehicle that “the drugs were hidden in the radio.”

There exists some apparent inconsistency as to the facts testified to by the officers conducting the search regarding the manner in which the cocaine was found. The record reflects the following somewhat varying descriptions as to the manner in which the search was conducted: The search continued, and the officer who had spoken to the woman began “messing around with the radio panel. The radio panel just fell off in [his] hand, it wasn’t even attached. [He] didn’t have to pry it or anything.” The officer applied no force “at all” to the panel before it came loose; when he started touching the panel it fell off. The officer touched the radio panel and found it to be loose; he then tugged or pulled on it and it came out of the dashboard. The radio was loose in the dashboard, and when the officer grabbed the knob and lifted it, the radio came out.

The police found 458 grams of cocaine with a purity of 100 percent behind the radio in the dashboard of appellant’s car. The street value of the cocaine was at least $250,000-$300,000. After the drugs were found, the search continued for weapons to no avail; appellant was arrested and charged with trafficking in cocaine.

The trial record and the motion to suppress hearing record contain evidence that at no time appellant withdrew or attempted to withdraw his consent to search. He never asked the police to stop their search; he never indicated that he did not want the police to search the vehicle in any particular manner or in any particular location thereof; and appellant never indicated that the police were taking too long to search or were not to look in any particular place in the vehicle. Appellant was standing close enough to the car so that if he had objected to the manner in which the search was conducted the officer would have heard him. However, appellant was never informed that he could refuse to consent to a search or that he could drive away before the search; and, his consent was obtained after he was advised he could be a potential suspect in a case.

However, at trial appellant testified the officer asked “if he could look in my car, look through my car,” and that appellant told him yes. This is what appellant understood the officer to say, although the officer could have said something else. Appellant agreed to the officer looking through his car because he thought he had no other choice; he was not told otherwise. Nor was appellant told that he was free to leave. Appellant believed he was not free to leave because the police car was right behind his and they never said he could leave. Appellant admitted in open court by affirmative response that he had freely and voluntarily consented to let the police go through his car, that is, “to search [his] car.” Appellant also testified that as the search was conducted he was left with some other officers behind the police car.

Following the suppression motion hearing, the trial court found that the only evidence before the court was that the search was consensual, and that the issue of consent was not disputed by any evidence before the court. At the conclusion of appellant’s testimony, defense counsel made an oral motion for reconsideration of its suppression motion in view of appellant’s testimony that the consent to search was not given voluntarily and freely, and moved for a directed verdict on that basis. The motion was overruled (denied).

(c) We find that State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195) (consent merely granted permission to look inside vehicle and not to seize and examine contents of packages in the car) and State v. Corley, 201 Ga. App. 320 (411 SE2d 324) are distinguishable from this case. Compare Thomas v. State, 201 Ga. App. 292, 293 (1) (410 SE2d 786) and Gossett v. State, 199 Ga. App. 286, 287 (1c) (404 SE2d 595). Also, unlike Diaz this case does not involve the examination of a closed container within the car. Significantly, the record in the case at bar establishes that appellant consented to the search of his automobile and did not limit such consent merely to looking inside without authorizing the touching or moving of any of the interior components thereof. Further, appellant admitted in open court, as above discussed, that he had freely and voluntarily consented for the police “to [the] search” of his car. Compare Bruce v. State, 191 Ga. App. 580, 581 (2) (382 SE2d 367). Additionally, assuming arguendo, appellant had limited the scope of search of the police merely to “go through [his] car,” the conduct of the police and the minor physical force, if any, used in removing the radio panel did not exceed the reasonable parameters of such consent as a matter of law.

(d) Pretermitting whether there exists a dispute of facts in this case (compare Davis, supra with McBride, supra (Hunt, J., concurring specially)), we find without deference to any express or implied finding of fact made by the trial court that the evidence of record supports the ruling of the trial court that appellant’s consent to search was freely and voluntarily given. The State has carried its burden of proof of voluntariness of consent within the meaning of Newsome, supra. Moreover, we do not find appellant’s implied contention that he subsequently withdrew or modified his consent to search to be supported by evidence of record. “ ‘Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn.’ ” Calixte v. State, 197 Ga. App. 723, 726 (2) (399 SE2d 490). The trial court did not err in denying appellant’s motion to suppress.

2. It is asserted the trial court erred in denying appellant’s motion for mistrial after the prosecutor made factual assertions not in evidence, during closing argument, that appellant had been selling drugs from Miami to Atlanta. (As closing argument was not transcribed, this court basically is limited to an examination of the reported statements of the State, the defense, and the trial judge following appellant’s objection to the prosecutor’s argument.)

Prior to trial, the trial court granted appellant’s motion in limine to preclude the State from presenting any evidence that appellant had been selling cocaine as he traveled from Miami “up the road” to Georgia, as such evidence would tend to put appellant’s character impermissibly in evidence. However, the trial court did leave open the issue of whether such evidence might subsequently become admissible in rebuttal. It appears from the arguments reported in the out-of-court hearing following appellant’s objection that, during closing argument, the State in fact argued in some context that appellant had been selling drugs all the way from Miami to Atlanta. In the out-of-court hearing, the trial court stated on the record, without contradiction by appellant or the State, that “I don’t think [appellant’s] objection went to [the prosecutor’s] saying [appellant] was a dope dealer. You said that early on in your argument; he didn’t object then. . . . But do you have a right to argue that he sold cocaine between Miami and Atlanta? That’s the question.” (Emphasis supplied.) The trial court emphasized to counsel that it had ruled such evidence was inadmissible, and that “the State then argues something that’s not in evidence and under the guise that this is a reasonable inference to be drawn from the evidence. I’d feel better about the argument had we not already gone through all this on the record and I had ruled that it wasn’t admissible. . . . And there is not any evidence in this case that he sold anything.” Thereafter, the trial court recalled the jury and gave them a curative instruction to the effect, inter alia, that there was not one scintilla of evidence that appellant sold any cocaine between Miami and Atlanta, that the jury was to disregard the prosecutor’s statement because it is not evidence in this case, and that the prosecutor was not to make any other statements as to matters not in evidence or from which no reasonable inference could be drawn. The trial court then polled the jury as to whether there was any juror who could not follow his curative instruction, and received no response from any juror indicating that the instruction could not be followed. Immediately thereafter, appellant took “exception to the court’s attempt to cure this problem,” but elected not to renew the motion for mistrial. We find appellant’s enumeration of error to be without merit for the following reasons.

(a) Notwithstanding the “exception” taken to the curative instruction of the trial court, appellant waived the mistrial issue by failing to renew the motion for mistrial after the curative instruction was given. Harris v. State, 202 Ga. App. 618, 620 (3b) (414 SE2d 919). While the taking of an exception to a curative instruction may serve as added insurance to preserve an issue regarding the effectiveness of such instruction (see Harris, supra at 619-620 (3a)), an exception taken to a curative instruction given subsequent to a timely mistrial motion will not serve to preserve the mistrial motion issue on appeal, because “[b]y having failed to renew timely the mistrial motion after [a] curative instruction, appellant has failed to preserve these issues for appellate review.” Id. at 620 (3b).

(b) Assuming arguendo the mistrial error was preserved on appeal, the record before us fails to include the actual argument of counsel so that we may examine the exact words spoken and their context, and fails to provide sufficient basis to find that the trial court breached its discretion (see generally Allen v. State, 259 Ga. 303, 304 (2) (379 SE2d 513)) giving a curative instruction to the jury. Further, the trial court’s poll of the jury reflects that no juror believed he or she could not follow the curative instruction. Moreover, qualified jurors, under oath, are presumed in the absence of clear contrary evidence to follow the procedural directives of and to respond honestly to questions of the trial judge. Dykes v. State, 191 Ga. App. 879, 880 (383 SE2d 210).

(c) Additionally, the record reveals the trial court stated, without challenge of counsel, that the State had earlier argued appellant was a drug dealer, that no objection was made to such statement, and that such argument before the jury was permissible. As the jury had already been made aware of the reasonable inference that appellant was in fact dealing in drugs, we find that any statement made to the effect that such dealing occurred between Miami and Atlanta could not have in reasonable probability changed the result of the trial. See Tharpe v. State, 262 Ga. 110, 114 (16) (416 SE2d 78). (Incidentally, appellant made an admission in judicio in open court during direct examination that he previously “used cocaine ... a few times before” (Hargroves v. State, 179 Ga. 722, 725 (4) (177 SE 561); Cape v. State, 165 Ga. App. 825 (303 SE2d 77)); thus, the question of his character regarding his association with drugs had been voluntarily raised, albeit to a lesser degree, by appellant’s own testimony. On cross-examination, appellant further clarified that the cocaine he had used previously also was in the form of white powder.)

Our holding is not to be construed as support for the State’s conduct. Although the State did not offer its original evidence of drug sales from Miami to Atlanta but merely argued such as an inference, we cannot condone the State’s ingenious circumvention of the trial court’s ruling (whether that ruling ultimately would have been found to be legally correct) that no evidence would be allowed regarding appellant’s alleged sale of cocaine from Miami to Atlanta, unless such evidence subsequently qualified for admission in rebuttal. It is the trial court and not counsel who is given the responsibility and power by law to exercise discretion in the admission of evidence and the control of the trial proceedings and of the parties before it. See generally OCGA §§ 15-1-3; 15-2-8; Santone, supra at 792 (3); In re McLarty, 152 Ga. App. 399, 402 (4) (263 SE2d 194).

Judgment affirmed. Beasley and Andrews, JJ., concur.

Decided March 8, 1993.

Morris E. Braswell, William L. Woods, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.


text:
    A92A1827.
    BRYANT et al. v. CARVER STATE BANK.
    (428 SE2d 621)
   Blackburn, Judge.

The appellants, Euris Bryant and Lois Russell, commenced this action against Carver State Bank, stemming from their unsuccessful attempt to obtain a loan secured by certain real estate in Savannah, Georgia. Following entry of a pretrial order identifying the bank’s conversion of loan commitment fees and breach of contract as the appellants’ causes of action, the matter proceeded to trial, during which the trial court directed a verdict for the bank. This appeal followed.

In early 1981, the appellants decided to renovate some property they owned for residential and rental purposes. They contracted with O. J. Wiles & Company to help them obtain construction and permanent financing on the property, and ultimately on July 20, 1981, Carver State Bank offered a six-month commitment for loans of $20,000 on one house and $21,000 on another. These commitment offers, however, specified that the loans were approved subject to several conditions, including rehabilitation of the houses by December 15, 1981, and payment of nonrefundable loan commitment fees totaling $1,575 within ten days of the offer. The appellants signed these loan commitment offers and paid the specified fees.

In October 1981, O. J. Wiles informed the appellants that he had been unable to obtain a construction loan with another bank, and he intended to try to arrange such with Carver State Bank. At that time, however, Carver State Bank did not offer such construction loans. Consequently, the property was not repaired by the December 1981 deadline, but on January 12, 1982, Carver State Bank extended the loan commitments and closing date until March 20, 1982. This extension, however, was subject to the same conditions as the original loan commitments, except for payment of loan commitment fees.

When the appellants, through O. J. Wiles, subsequently requested yet another extension, Carver State Bank refused, unless the appellants updated their entire loan commitment fees. The appellants submitted a payment, but on March 24, 1982, the bank returned their check and informed them that the bank would be unable to grant their loan request because a review of their credit history had revealed delinquent mortgages on the property in question.

During the trial, the appellants acknowledged that they had understood that the loan commitment fees were nonrefundable. Further, they acknowledged understanding that the bank’s loan commitments had been subject to the satisfaction of certain conditions, one of which was the repair of the property, prior to the expiration of the loan commitment period. Lastly, the appellants admitted that those conditions were not met. However, they felt aggrieved due to the fact that Carver State Bank’s initial loan commitment letters had indicated that it had received approval for permanent financing from the Federal National Mortgage Association (FNMA), which had influenced their decision to agree to pay the nonrefundable loan commitment fees.

1. The appellants contend that the trial court erred in excluding the testimony of Rudolph A. Payton (the son of one of the appellants), who would have testified about visiting the FNMA office in Atlanta in 1982 and being told by the receptionist that no loan approval request by Carver State Bank was on file regarding the appellant’s property. The trial court excluded the testimony because the witness was not named on the pretrial order, and because it constituted inadmissible hearsay.

“The decision whether to allow a party to introduce at trial (either in the case-in-chief or in rebuttal) the testimony of a witness not named in the pretrial order is a matter within the discretion of the trial court. [Cit.]” Nease v. Buelvas, 198 Ga. App. 302, 303 (401 SE2d 320) (1991). In the instant case, Payton was not included in the pretrial order, and the appellants did not call him as a witness until the end of the second day of trial. Counsel for the appellants explained the omission by stating that he had not been aware of the witness until the day before. Considering the surprise to the bank that would have resulted from allowing the testimony about a conversation with an unknown receptionist ten years earlier, the trial court did not abuse its discretion in excluding that testimony.

Further, the proffered testimony was, in any event, inadmissible hearsay. The appellants contend that the otherwise hearsay statement of the receptionist would be admissible under OCGA § 24-3-2 and Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), to explain the conduct of the witness in later advising his mother and aunt to contact their Congressman regarding the banking practices of Carver State Bank. However, before such hearsay evidence becomes admissible for the purpose of showing conduct, that conduct must be a relevant issue in the case. Noles v. State, 172 Ga. App. 228 (322 SE2d 910) (1984). Payton’s conduct cannot reasonably be considered relevant to the issues of whether Carver State Bank converted the loan commitment fees paid by the appellants or whether the bank breached the loan commitment agreements.

2. The appellants also contend that the trial court erred in directing a verdict for the bank, on the grounds that the evidence, including the excluded testimony of Payton, was sufficient to create issues of fact regarding their conversion and breach of contract claims against Carver State Bank. We disagree.

In order to prevail on their conversion claim, the appellants were required to show that the bank had lawfully gained possession of the loan commitment fees, that the appellants retained title and right of possession of the money, that the appellants demanded return of the money, and that the bank refused to return it. Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497 (300 SE2d 328) (1983). Concerning their breach of contract claim, the appellants had to show their performance of the conditions precedent that would give rise to the bank’s obligation to make the loans. State Farm Mut. Auto. Ins. Co. v. Sargent, 162 Ga. App. 127, 128 (354 SE2d 833) (1982).

In this case, it was uncontroverted that the appellants understood that the requisite loan commitment fees paid to Carver State Bank were nonrefundable; that they understood that the loan commitments were conditioned upon the rehabilitation of the property in question within a certain date; and that the repair of the property never occurred by the deadline. A directed verdict is proper only where there is no conflict in the evidence as to any material issue, and the evidence, with all reasonable deductions therefrom, demands a particular verdict. OCGA § 9-11-50 (a). See generally Blalock v. Central Bank of Ga., 170 Ga. App. 140 (316 SE2d 474) (1984). The evidence in this case demanded a finding that the appellants surrendered their title and right to the loan commitment fees when they paid them pursuant to the agreements which clearly provided that such fees were nonrefundable. The evidence further demanded a finding that the appellants did not satisfy several condition precedents to the loan commitments, the most important being the rehabilitation of the property in question. Under these circumstances, the trial court properly directed verdict for the bank.

The appellants emphasize that in the initial loan commitment offers, Carver State Bank indicated that it had obtained approval from the FNMA for permanent financing on the appellants’ property. They contend that this assurance of FNMA approval influenced their decision to accept the terms of the loan commitment offers and pay the nonrefundable fees. However, inasmuch as the bank, and not the FNMA, was making the commitment for the loans, and would ultimately be obligated to make the loans upon the appellants’ performance of the specified conditions within the commitment period, the significance the appellants placed upon the information regarding FNMA approval fails to create an issue of material fact in this case.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.

Decided February 25, 1993

Reconsideration denied March 9, 1993

Beckmann & Pinson, Walter W. Ballew III, for appellants.

Wiseman, Blackburn & Futrell, James B. Blackburn, Jr., Douglas M. Robinson, for appellee.


author: Johnson, Judge.

text:
    A92A2250.
    OLIVARIA v. THE STATE.
    (428 SE2d 624)
   Johnson, Judge.

Virgil Olivaría appeals from his convictions of voluntary manslaughter and possession of a firearm during the commission of a crime.

1. Olivaría contends that the court erred in refusing to admit into evidence tape recordings of prior inconsistent statements made by two State witnesses. The State concedes that the statements were admissible, but claims that the court’s error in refusing to admit the statements was harmless because Olivaría was allowed to cross-examine the witnesses about the prior statements. The State’s argument is not persuasive.

Evidence at trial showed that Jonathan Edwards was shot in a hotel room. The State presented no eyewitnesses to the shooting, but did present several witnesses to the events leading up to the shooting. Of those witnesses, only Andre Ingram and Delante Martin, the two witnesses who gave the prior tape-recorded statements, testified that they knew Olivaría was in the hotel room at the time of the shooting. Ingram testified that he saw Edwards, Olivaría and co-defendant James Williams arguing in the room, and immediately thereafter he heard gunfire. Martin testified that at the time of the shooting only Edwards and Olivaría were in the room because Williams had left. In their tape-recorded statements, however, both Ingram and Martin assert that they were not near the room at the time of the shooting. Ingram states that he was not even at the hotel at the time of the shooting and that he did not see anything happen that night. Martin states that he was around the corner in another room of the hotel and that he does not know anything about the shooting. These statements were admissible not only to impeach Ingram and Martin, but also as substantive evidence that they were not near the scene of the shooting when it took place. “A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Moreover, a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” (Citations, punctuation and emphasis omitted.) Ledford v. State, 202 Ga. App. 694, 695 (1) (415 SE2d 693) (1992).

Decided February 25, 1993

Reconsideration denied March 9, 1993

Kissiah & Associates, James W. Richter, for appellant.

J. Thomas Morgan III, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

The court refused to admit these statements into evidence, but instead limited Olivaria to questioning Ingram and Martin about them on cross-examination. The jury should have been allowed to hear these two critical witnesses, in their own words and voices, making statements that directly and materially contradicted their trial testimony. The evidence in this case was not so overwhelming that we can say the jury’s verdict would not have been influenced by these two statements. Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991). The court’s erroneous exclusion of the statements was not harmless.

2. Because of our decision in Division 1, we will not address the remaining enumerations of error.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

       One of the other witnesses gave pretrial statements to the state indicating that he saw Olivaría run from the hotel room after the shooting, but at trial he denied actually seeing Olivaría leave the room.


text:
    A92A1722.
    A. ROBERTS CORPORATION et al. v. ROBERTS.
    (428 SE2d 671)
   Blackburn, Judge.

Evelyn M. Roberts, the appellee, brought a suit in equity to set aside a promissory note and deed to secure debt, against A. Roberts Corporation and her former husband, Jesse Roberts, the president and sole shareholder of the corporation. The case was tried before a trial judge sitting without a jury and on March 22, 1991, the court granted the appellee’s petition to set aside the note, finding that the promissory note was executed by the appellee without consideration, and as a result, the loan was void ab initio.

On April 16, 1991, the appellants filed a notice to appeal the March 22, 1991, order to the Supreme Court, and filed a request for the transcript of the record on April 22, 1991. The appellants were subsequently granted an extension of time for the filing of the transcript through July 1, 1991. As of October 3, 1991, the transcript had not been filed with the clerk of the court, and the appellee moved for the dismissal of the appeal pursuant to OCGA § 5-6-48 (c), based upon the appellants’ inexcusable and unreasonable delay in filing the transcript. In response to the motion, the appellants asserted that all costs had been paid timely and any delay in the transmission of the record had not been caused by them. The appellants admitted that the extension of time granted for the transmission of the transcript had expired, but asserted that the transcript had not been filed because of the disappearance of exhibits that had been introduced at trial.

On January 16, 1992, the trial court granted the appellee’s motion to dismiss the appeal based in part upon the failure of the appellants to request an extension of time in which to reconstruct or duplicate the missing exhibits. The trial judge also noted that the missing exhibits had been clearly identified in the record and their disappearance would not have a bearing on the appeal. This appeal followed.

The appellants contend that the trial court’ erred in dismissing their appeal without making specific findings that their failure to file the transcript was unreasonable, inexcusable, and caused by their actions. They further assert that the decision of the trial court is in error because their delay in filing the transcript was neither unreasonable nor inexcusable. We disagree.

A trial court has the authority to dismiss an appeal “where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” OCGA § 5-6-48 (c). “The failure [of a party] to apply for an extension does not automatically convert the delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal. The court must find all these conditions before an exercise of discretion is authorized.” Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990). Although the trial court did not use the specific terminology delineated in the statute, the trial court’s order indicates that the court considered those factors in concluding that the dismissal of the appellants’ appeal was proper. The trial court found that the appellants’ delay in filing the transcript was unreasonable because it was not filed as of January 17, 1992, five months after the expiration of the extended time period in which to file the transcript and three months after the filing of the appellee’s motion to dismiss the appeal. The appellants neither alleged nor showed that the delay in filing the transcript was attributable to anyone else, such as the court reporter. Cf. Baker v. Southern R. Co., supra; where the affidavit of the court reporter was filed of record concerning the failure to file the transcript. Appellants, in their response to appellee’s motion to dismiss appeal, cast no blame on any person for the failure to file the transcript and it is appellants’ duty to have the transcript filed, absent a showing of fault by others. Appellants simply assert that the exhibits introduced at trial have disappeared. It is apparent that the court further found that the appellants’ failure to file the transcript was inexcusable inasmuch as the allegedly missing exhibits which formed the basis for such delay were clearly identified for the record at trial and their disappearance would not have a bearing upon the filing of the transcript. The trial court placed some emphasis on the appellants’ failure to request an additional extension of time to file the transcript, but that factor did not constitute the sole basis for the court’s decision to dismiss the appeal.

Decided March 9, 1993.

Arrington & Hollowell, Randy C. Gepp, Bradley S. Wolff, for appellants.

Bernard & Associates, Patricia D. Bernard, for appellee.

In summary, the trial court made sufficient findings that the delay in filing the transcript was unreasonable, inexcusable and caused by the appellants. We find no abuse of discretion in the trial court’s dismissal of the appellants’ appeal, and consequently, the appellants’ enumerations are without merit.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A92A1732.
    BOUNDS v. THE STATE.
    (428 SE2d 673)
   Andrews, Judge.

Bounds appeals from his conviction for simple battery and reckless driving resulting from an altercation with his ex-wife and her male companion.

The sole enumeration of error includes two separate bases for the argument made, which is inappropriate. Each ground should be separately enumerated. OCGA § 5-6-40. The ground stated in the first paragraph was not made below and will not be considered here for the first time. Miller v. State, 201 Ga. App. 374, 375 (2) (411 SE2d 112) (1991).

To the extent that the enumeration raises the objection made below to the cross-examination of Bounds by use of a 1988 judgment and conviction for failing to obey a police officer and obstruction of an officer, it will be addressed.

During his opening argument, defense counsel depicted the case as “basically a domestic case . . . Mr. Bounds has been arrested previously by Ms. Bounds, each case . . . has been dismissed.” Ms. Bounds was cross-examined by the defense and acknowledged that she had taken out warrants and had him arrested on three occasions. Mr. Rodriquez, the friend of Ms. Bounds, was also cross-examined regarding the one prior incident in which he was also involved which resulted in Bound’s arrest.

Bounds testified and on direct was asked if he and his wife had had problems and if he “had ever been arrested previous to this time.” He responded, “Including this or previous to this? Previous, three; including this, four.” He then testified that all these previous charges were dismissed.

On cross-examination, the following occurred: “Q. Mr. Bounds, you testified here that you had been arrested three times? A. That’s correct.” Asked the dates of his previous arrests, he stated, “January 1991, March 25, 1991, April 12, 1991.”

At that point, the jury was excused and the state offered its proffer that, in fact, Bounds had been arrested and convicted in 1988 of failing to obey an officer and obstructing an officer.

The objections voiced by the defense during Bound’s cross-examination were that “the only arrests that has [sic] been gone into in this case are the arrests as were related to this particular case,” and that “the only thing that has gone in are the arrests that came to pertain to this particular case, those being cases that were dismissed to show that the defendant did not do the things that he was accused of. I don’t like that opening the door to every arrest that he ever had. . . .”

The court properly allowed that evidence as impeachment. While Bounds may not have intended to open the door to the 1988 arrest and conviction, he did so. “(a) Where the defendant testifies in his own behalf and falsely denies past criminal conduct (or past misdeeds,) the State may introduce evidence reflecting negatively on the defendant’s character only insofar as that evidence proves the falsity of specific testimony of the defendant. ... In this circumstance the defendant has not placed his character in issue within the meaning of OCGA § 24-9-20 (b). Rather, we recognize this as a situation where the State is permitted to rebut statements of a defendant who testifies at trial by disproving the facts testified to. . . . (b) Where the defendant testifies and admits prior criminal conduct, he has not placed his character in issue. . . . Rather, he has raised an issue which may be fully explored by the State on cross-examination. If however, the defendant testifies he has committed a crime, implying that this is his only criminal record, his testimony is again subject to rebuttal by proof of other crimes he has committed.” (Citations, punctuation and emphasis omitted.) Jones v. State, 257 Ga. 753, 759 (1) (363 SE2d 529) (1988). See also Brantley v. State, 199 Ga. App. 623, 625 (7) (405 SE2d 533) (1991); Gaither v. State, 194 Ga. App. 213, 214 (1) (390 SE2d 113) (1990).

Decided March 9, 1993.

Ray B. Gary, Jr., for appellant.

Patrick H. Head, Solicitor, Benjamin M. First, Clifford L. Granger, Jr., Assistant Solicitors, for appellee.

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


text:
    A92A1733.
    RACKMYER v. BRADFORD.
    (428 SE2d 674)
   Blackburn, Judge.

The appellee, Roger Bradford, commenced this action against his sister, Linda Rackmyer, alleging the existence of a partnership formed to operate a pawnshop and seeking an accounting of the partnership affairs. The jury found that Bradford had a one-half interest in the business operated by the partnership, and awarded him money damages and attorney fees. Rackmyer appeals from the judgment entered on the jury’s verdict.

The evidence presented by the parties was in sharp conflict on the nature and terms of the dealings between them. It is undisputed that the appellee and other business partners operated a pawnshop from May or June 1983 until the appellee was convicted of conspiring to traffic in marijuana and sentenced to state prison in February 1984. Evidence was adduced that the sale of firearms constituted a portion of the pawnshop’s business. Virtually every other material fact was disputed.

The appellee testified that he left his wife and another employee in charge of operating the pawnshop when he was imprisoned. He testified further that the appellant and his wife came to visit him in June 1984 and informed him of problems with the operation of the business. According to the appellee, he and the appellant then agreed that he would give her a one-half interest in the business and that she would run it until he was released. The appellee also recounted the financial details of their agreement, part of which called for the appellant to pay the appellee’s wife $600 per month until the appellee’s release from prison.

The appellant testified that the pawnshop had been closed sometime in the spring of 1984 and that it had no inventory or utility service when she reopened it in June. She denied the existence of any partnership agreement with the appellee, and maintained that she had taken over an abandoned business. The appellant and her husband testified that they had invested their own money in the venture, and had incurred a net loss from 1985 through 1990. The appellant also testified that any financial dealings with the appellee resulted from her efforts to assist the appellee’s wife, who was ill and sometimes unable to take care of her financial affairs.

On appeal, the appellant contends that the evidence was insufficient to support the jury’s finding that a partnership existed or that the appellee was due funds pursuant to an accounting, and also maintains that any such partnership would be against public policy because the appellee, as a convicted felon, was prohibited by law from obtaining a license to sell firearms. She also enumerates as error the trial court’s refusal to give her requested jury instructions on the inability of a convicted felon to obtain a license to carry or sell firearms.

1. The appellant contends that because any person in the business of selling certain firearms must first obtain from the Department of Public Safety a license to do so under OCGA § 43-16-2, and because OCGA § 43-16-3 bars a convicted felon from obtaining such a license, any partnership agreement between the appellant and the appellee would be void and unenforceable as contrary to the public policy of this state. Under the facts of this case, we find that contention to be without merit.

“ ‘A contract to do an . . . illegal thing is void.’. . . For a contract to be illegal under this principle the purpose or object of the contract must be illegal. [Cits.] However, this rule has been held inapplicable where the object of the contract is not illegal or against public policy, but where the illegality is only collateral or remotely connected to the contract. [Cit.] ‘(T)he rule that an agreement in violation of law is invalid does not always apply where the existence of the thing in question is due to a violation of law only in the sense that incidentally some law was violated in its production, where it might have been created without such violation.’ ” Shannondoah, Inc. v. Smith, 140 Ga. App. 200, 202-203 (230 SE2d 351) (1976); see also Krawagna v. H & S Liquor, 176 Ga. App. 816 (1) (338 SE2d 284) (1985).

In the instant case, the activity which formed the subject matter of any partnership agreement between the appellant and the appellee was the operation of the pawnshop, and not the trade of firearms. Guns were sold in the course of the pawnshop business during the appellee’s incarceration, and the appellee concedes that he could not engage in that specific activity if he presently operated a pawnshop. Nevertheless, it must be emphasized that the trade in firearms was incidental to, and not a necessary activity of, the actual subject matter of the partnership agreement.

It is not illegal for a convicted felon merely to operate a pawnshop. Inasmuch as the trade of firearms was only incidental to the operation of the pawnshop during the period of time in question, the partnership agreement between the appellant and the appellee regarding the operation of the pawnshop did not violate public policy. For that reason, the trial court properly excluded any testimony expressing an opinion as to the legality of that partnership agreement, and correctly refused to instruct the jury regarding the illegality of convicted felons engaging in the sale of firearms.

Decided March 9, 1993.

James E. Sherrill, for appellant.

Scott Walters, Jr., for appellee.

2. As noted above, the testimony of the parties concerning the formation and terms of a partnership agreement was greatly conflicting. “On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. [Cit.]” J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 730 (380 SE2d 282) (1989). There was some evidence in this case supporting the finding of a partnership agreement between the appellant and the appellee, and the verdict thus may not be disturbed.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.